The Ministry of Labor and Employment (MTE) recently clarified the format and content of the Salary Transparency Report (Report) and what would be the next deadlines to be observed by companies until March 30, when the first Report should be published by companies.

As we pointed out in our last article, the Report will be divided into two parts. The first will consist of the complementary information provided by the companies on the Emprega Brasil Portal and the second will present the comparison of salaries and remuneration of employees.

The first step to be taken by companies is to access the Emprega Brasil Portal and send the complementary information requested by the MTE by February 29. [This deadline was extended to March 8, 2024 by the MTE.]

At this stage, it is essential that the Human Resources (HR) team responsible for sending the information is aligned with the legal team. This is because HR's understanding of certain topics (such as what characterizes a positions and salary plan) may not be the same understanding from a legal point of view. Depending on the information sent, the company would be exposed to consequences on the result of the Report to be prepared by the MTE.

After the deadline for the submission of additional information by the companies, the MTE will begin the preparation of the Reports, which will be available to the companies until March 15.

Once the Report is released by the MTE, companies will have until March 30 to publish their Report on their websites, social networks or similar instruments and ensure wide dissemination to their employees, collaborators and the general public.

In view of this, until the beginning of March, companies should work internally to anticipate what will be the possible panorama of the comparison of positions and salaries between women and men that will be presented in the Report prepared by the MTE.

It is worth noting that although the MTE has stated in its events that the Salary Transparency Report will be carried out by CNPJ (tax ID) – that is, each branch of the company will have its own Report when it has 100 or more employees – this position is contrary to Law No. 14,611/23, which expressly provides that the Report must be prepared and published by private legal entities with 100 or more employees (even if there are CNPJs that have fewer than 100 employees).

Therefore, the ideal is that, when carrying out the prior analysis, companies simulate the two scenarios: the preparation of Reports by CNPJ – when they have more than 100 employees – and the preparation of a single Report, considering the sum of the company's employees.

Having made these considerations, the analysis prior to the publication of the Report will allow the company to identify whether the MTE Report will indicate:

  • whereas there is no discrepancy in pay and pay criteria between women and men;
  • minimal discrepancy in wages and remuneration criteria between women and men; or
  • large discrepancy in pay and remuneration criteria between women and men.

In the first (unlikely) scenario, there are no measures to be adopted by the company, as there is no inconsistency in the salaries and remuneration criteria practiced between women and men. Therefore, it is up to the company to continue with the publication of the Report by March 30.

In the second scenario, as the discrepancies pointed out by the MTE Report are minimal, the company would find it easy to legally clarify the reason for these discrepancies. The most recommendable conduct to be adopted in this case would be to proceed with the publication of the MTE Report by March 30and, at the same time, to publish the legal clarifications – previously and internally prepared – on the minimal inconsistencies exposed in the Report.

In the third scenario, it is likely that the methodology used by the MTE will present large discrepancies that lead anyone who reads the Report prepared by the MTE to conclude that the company practices discrimination between women and men. In this case, in order to avoid a misinterpretation of the Report, as well as possible negative effects arising from the methodology used by the MTE, we believe that the best strategy to be adopted by the company would be to file a judicial measure with an injunction against the MTE.

The purpose of this measure would be to allow the company to refrain from publishing the Report prepared by the MTE and to publish exclusively its own report, following the parameters of the law.

For the preliminary injunction to be granted, the company must, together with the legal grounds on which the injunction is based, demonstrate the large discrepancies between the MTE Report and the reality practiced in the company, as well as the losses resulting from the publication of the MTE Report with discrepant information. Examples of these losses would be the company's exposure to reputational and competitive damage. It is also recommendable for the company to submit its own report to the court, both to highlight the discrepancies and to ask the court to determine that the Report prepared by the MTE not be disclosed by any source.

Therefore, for the company to have a complete and clear view of its current practices in the face of the scenario to be analyzed and exposed by the MTE, it is essential that, in addition to the prior evaluation, the company prepares its own report, as part of its defense and image strategy to be passed on to its employees, stakeholders and labor authorities.

In view of the above and considering the deadline for publication of the Report, the ideal is that, if the company chooses to prepare and anticipate the results of the MTE Report, the preliminary analysis and the report itself should be ready by March 15th.

In this way, the company will be able to quickly present its real and effective practices applied to salary and remuneration and take the appropriate measures strategically.