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Equal pay law: Drugstores get injunction not to publish data

Companies challenged the sending of labor information and public disclosure of the data.

From the Editor

 

Wednesday, March 6, 2024

 

Updated at 09:27

 

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Two drugstore chains obtained, in court, the right not to provide the government  with employee labor and salary information for the  Brasil Portal, as well as not to  publish a salary transparency report produced by the MTE on their websites and social networks. Companies question the requirements, set out in the equal pay law. Injunctions were granted by judges from the 26th Federal Court of RJ, and the 26th Federal Civil Court of SP.

 

 What does the law say

 

Sanctioned in July last year, law 14,611/23 provides for equal pay and remuneration criteria between men and women, as well as establishing transparency in the remuneration of professionals with equivalent positions.

 

Decree 11,795/23   and ordinance MTE 3,714/23 , published last November, regulate how this data transparency must be carried out. According to the legal text, every semester companies with 100 or more employees must confirm the data reported by on employees' salaries and occupations, and provide additional data through the Brasil Portal, which will contain the criteria adopted in remunerations and initiatives to strengthen the hiring and promotion of women.

 

After submitting the forms, the MTE may request additional information, if necessary, to validate the registration and carry out inspection. Based on the data provided, the MTE will then prepare a report on gender disparities in the labor market for each CNPJ, a report that must be replicated by private companies on their websites and/or social networks.

 

The deadline for companies to submit this information through the  Brasil Portal was extended by the government until March 8th. The MTE will have until March 15th to publish the reports, to be replicated by companies by March 30th.

 

Read more

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Equal pay law: Companies obtain injunctions not to hand over data to the government. 

Decisions

 

The injunctions obtained exempt  Pacheco S/A and  São Paulo from sending data on salary equality campaigns, internal promotion of employees, as well as exempting companies from publishing the salary transparency report on their websites and/or social networks .

 

The first company filed a cognitive action against the Union aiming for the defendant to refrain from demanding the sending of data, the reproduction of the report and the participation of professional unions in the preparation of a possible action plan to mitigate inequality.

 

When granting the injunction, Federal Judge Elizabeth Mendes, from the 26th Federal Court of RJ, observed that the legislator's intention is to guarantee equal pay between men and women, "and there is no reason why, at least in principle such inspection cannot occur through much more precise databases, such as e-Social itself, FGTS, CNIS and others, protected by due secrecy".

 

"It does not seem reasonable to require companies to provide all data, even relating to labor policies that, as stated by the plaintiff, are not even mandatory, as well as that such data be publicized including on social networks, through constant determination of decree and ordinance , without due legal support, and without demonstrating that such data are necessary to achieve the wage equality that the aforementioned legislation intends to guarantee."

 

The judge also noted that, if this were not enough, the requirement for data publicity, apparently, contrasts with the supposed guarantee of anonymity and confidentiality, based on data protection law.

 

Process : 5011649-62.2024.4.02.5101

Check the injunction .

 

With a similar request, the second company claims that the decree and ordinance, in addition to simply regulating the law, create new obligations, offending constitutional principles such as the right to privacy and intimacy, in addition to free competition.

 

When analyzing the request, Federal Judge Silvia  Marques noted that the law provided for the publication of a transparency report, but guaranteed the anonymity of the data. The decree, in turn, states that it must contain a series of information and be published on the companies' own websites and social networks.

 

"Now, from a simple reading of the ordinance, it appears that, in fact, it went beyond the law itself."

 

The judge did not accept all of the drugstore's requests, but granted advance relief to remove the author's obligation to send personal and restricted data to the Federal government, as well as to reproduce the report on its website and networks. 

 

Process : 5004530-33.2024.4.03.6100

See the decision .

 

Andrade Maia Advogados acted in both cases.

 

Losses

 

According to Maria Carolina Lima , labor lawyer and partner at the firm, more companies have sought legal assistance to contest the sending of this data and the subsequent publication of the report, claiming that this exposure of information involving salary policies and remunerations practiced can affect issues such as free competition, economic freedom and the right to image of companies, in addition to the privacy of the workers themselves.

 

The lawyer states that, in the actions, the importance of equal pay between men and women is not being discussed, as an expression of the principles of equality and non-discrimination.

 

However, she points out that unconstitutionalities and illegalities were identified, especially in decree 11,795/23 and in ordinance MTE 3,714/23 (which regulate law 14,611/2023, which provides for equal wages and remuneration criteria between men and women) .

 

"The way in which the Ministry of Labor and Employment requests private information without the necessary legal basis and the way in which it intends to expose companies' data publicly can cause several damages to the image and free competition, without even being able to reflect the remuneration reality of companies. companies, which is why this topic is so important."

 

Maria Carolina assesses that the way in which the data will be processed by the Ministry of Labor could result in the issuance of a report with distorted information from reality.

 

"It may be that a company is not committing any illegality, that there is no offense to the principle of equal pay, but it appears that there is, because the criteria that the Federal government will use to generate these indicators are not in accordance with the law and with the Federal Constitution."