Between the end of February and the beginning of March, two injunctions were granted to companies in the pharmaceutical sector, one by the Federal Court of São Paulo and the other by the Federal Court of Rio de Janeiro, establishing the companies involved in the lawsuits are not obliged to send personal and restricted data to the federal government for the preparation of the Salary Transparency Report. The two injunctions also exclude the obligation to publish the Salary Transparency Report on websites/social networks.

The injunction granted by the Federal Court of Rio de Janeiro also determined that the Union must not require the participation of professional unions in the preparation of action plans to mitigate inequality. It also waived the requirement to deliver the action plan to the labor union.

The decision of the Federal Court of São Paulo is based on the fact that  Ordinance 3,714/23 and Decree 11,795/23 violate the principle of legality, by extrapolating Law 14,611/23 as follows:

  • Ordinance 3,714/23 – by providing that the report to be answered by companies must be prepared based on various data extracted from the Emprega Brasil Portal. This means that it must be based on the questionnaire prepared by the Ministry of Labor and Employment, which includes questions about the existence of a job and salary plan, policies for hiring and promoting women, policies to support parenthood, and criteria for career progression; and
  • Decree 11,795/23 – by determining the publication of the report on the companies' websites and social networks.

The decision of the Federal Court of Rio de Janeiro follows the same line as the decision of São Paulo by providing that the requirement of data for the preparation of the report (Ordinance 3,714/23) and the disclosure of this data (Decree 11,795/23) have no legal backing.

In addition to being based on the absence of legal support, the decision of the Federal Court of Rio de Janeiro is based on other points:

  • the inspection of equal pay between men and women can occur through other more accurate databases (such as eSocial);
  • It is not reasonable to require that this data should be published even on social networks. This requirement may even violate the General Data Protection Law;
  • There is, for the time being, no point in disclosing this data to the general public, as equality must be ensured between employees of the same company;
  • it is not reasonable to demand all the data provided, even relating to labor policies that are not even mandatory; and
  • Distinctions between companies in the same industry cannot be based on labor programs and benefits that are not mandatory.

Given these decisions, would it be the end of the Salary Transparency Report? We don't think so.

The injunctions granted are applicable only to the companies involved in the lawsuit and do not favor other companies that do not obtain a similar decision – decisions resulting from lawsuits filed by associations or groups of companies, despite having greater scope, would also only be applicable to the companies represented in the lawsuit.

In addition, up to now, these decisions are provisional and are still subject to change. In our view, some of the grounds put forward by both would not be sufficient to rule out the obligation to publish the report in a broad and definitive manner.

This is because some of the arguments presented do not seem to strictly reflect the legislation in force. This is the case, for example, of the allegation of violation of the General Data Protection Law.

Specifically in relation to this ground, although Decree 11,795/23 and Ordinance 3,714/23 provide that the report must contain the "value" of wages and remuneration, the report model presented by the Ministry of Labor and Employment does not include the identification of any employee or the indication of salary or remuneration amounts in absolute numbers.

In other words, according to the Salary Transparency Report, it would not be possible to identify the salary of any employee or their respective remuneration – which was even reinforced in the "frequently asked questions" released by the Ministry of Labor and Employment.[1]

This understanding applies even when the comparison is made by the Ministry of Labor and Employment, considering the Large Occupation Group. The list of questions and answers released by the labor authority clarifies that the comparison based on this criterion will only be carried out if the Large Occupation Group has at least three people of each gender.[2]

All these points will possibly be questioned by the Union when it is up to it to express itself. There is therefore a risk that the preliminary injunctions will not be upheld.

There are, however, other grounds used in the decisions which we believe are robust enough to warrant the non-publication of the report, at least for the time being.

Among them, it is noteworthy that Ordinance 3,714/23 extrapolated Law 14,611/23 when it imposed on companies the obligation to answer the questionnaire of complementary information, whose questions do not assess compliance with any legal obligation imposed on companies.

It should be noted that the decisions rendered did not analyze the issue involving the methodology for comparing wage equity, which does not comply with Law 14,611/23 and article 461 of the Brazilian Labor Laws - CLT with regard to the performance of work of equal value or in the exercise of the same function. This point could completely invalidate the model released by the Ministry of Labor and Employment.

In our view, the aforementioned decisions do not have the power to fully invalidate Law 14,611/23, Ordinance 3,714/23 and/or Decree 11,795/23, as they consider specific points of these instruments. At the limit, the main obligation established (i.e., the report itself) would remain. The decision issued by the Federal Court of São Paulo expressly recognizes that "not all the rules provided for in the decree and in the ordinance violate the principle of legality."

Based on these grounds, we believe that, in the future, changes may be made to the regulations in order to restrict the data necessary for the preparation of the report and/or the obligation to publish it to the general public. However, it is unlikely that the obligation to publish the Salary Transparency Report will be extinguished, as this obligation has been imposed by law.

At the same time, on February 28, Legislative Proposal 500/24 (PL 500/24) was presented in the Chamber of Deputies to amend Law 14,611/23 and postpone the mandatory publication of reports to January 1, 2026.

The Legislative Proposal is based on the understanding that it is essential to establish an adequate period for companies to make the necessary adjustments and ensure their compliance with the new legislation.

Despite binding all companies covered by the obligations provided for in the new legislation, PL 500/24 still needs to be approved, which requires a long and complex path to be traveled.

In this context and considering the proximity of the deadline for companies to complete or rectify the questionnaire of complementary information, in addition to the deadline for the publication of the report, we understand that organizations should choose one of the options below, according to their own reality:

  • publish the report of the Ministry of Labor and Employment, exactly as provided by the labor authority (recommended only if there is no wage discrepancy);
  • publish the report of the Ministry of Labor and Employment and, jointly, publish the company's own report, in which possible inconsistencies in the report of the labor authority are clarified; or
  • file a lawsuit seeking not to publish the report of the Ministry of Labor and Employment, but at the same time work on the company's own report, considering that the precedents are not yet well established and different decisions may be rendered – in addition to the obligation to publish the Salary Transparency Report remaining in force.

For companies that choose to file lawsuits, we recommend that it be done as soon as possible, as the deadline for publication of the Salary Transparency Report is maintained for March 31 (except for those companies that obtain a decision authorizing them to refrain from publishing the document).

We continue to follow the topic and will inform you of any news.

 

[1] Will there be disclosure of individual data?

There is no possibility for individual data to be disclosed. Rigor with the application of the General Data Protection Law is everyone's duty. Where the small number of persons in positions implies the identification of these persons, the information shall not be disclosed. The data refers to companies and not segments. In this case, the data will be compared with the other information requested – the analysis will be made from the set, and not just from an isolated piece of information.

[2] How will the confidentiality of employees who hold unique positions in the company be guaranteed?

The information will be made available to large CBO's groups, thus avoiding the identification of unique situations. In case this situation persists, statistical treatment will be applied indicating the possibility of identifying an identifiable number (up to 3 of each gender) of employees.