Feb
18
French labour law : Equal pay between women and men (égalité salariale femmes / hommes) : the new rules applicable from 2019 (Decree n°2019-15 of January 8th, 2019)

In France, the pay gap between women and men is of 9% for equal work and of 25% for the entire career, according to figures published by the French Ministry of Labour.

Articles 104 and 105 of the “Professional Future” Law (Loi Avenir Professionnel) n° 2018-771 of September 5th, 2018 seek to remedy to its gap (écarts de rémunérations).

The obligation to monitor equal pay indicators between women and men applies from January 1st, 2019 for companies with more than 250 employees and from January 1st,2020 for companies employing between 50 and 250 employees.

The decree n° 2019-15 of January 8th, 2019 was published specifies the modes of application of the provisions of the law of September 5th, 2018.

The provisions of this decree come into force from January 1st, 2019.

However, the obligation to publish the results of new indicators is modulated to:

  • Companies with more than 250 and fewer than 1,000 employees until September 1st, 2019 ;
  • Companies with 50 to 250 employees until March 1st, 2020.

1) The company must take into account a target of eliminating the pay gap between women and men (Article L. 1142-7 of the French Labour Code).

The employer takes into account a goal of eliminating pay gaps between women and men.

Such provisions shall apply no later than January 1st, 2019 for companies with more than 250 employees and no later than January 1st, 2020 for companies with between 50 and 250 employees.

2) The company must publish indicators of equal pay differences between women and men (Article L. 1142-8 of the French Labour Code).

2.1) Indicators for companies with more than 250 employees. Indicateurs pour les entreprises de plus de 50 à 250 salariés

For companies with more than 250 employees, the following indicators must be published:

1. The pay gap between women and men, calculated on the average of women's earnings compared to men's, by age group and by category of equivalent positions;

2. The rate gap of individual wage increases not corresponding to promotions between women and men;

3. The gap in promotion rates between women and men;

4. The percentage of employees who received an increase in the year of their return from maternity leave, if increases occurred during the period during which the leave was taken;

5. The number of employees of the underrepresented sex among the ten employees who received the highest salaries.

2.2) Indicators for companies with more than 50 to 250 employees.

For companies from 50 to 250, the indicators mentioned in Article L. 1142-8 are as follows:

1. The pay gap between women and men, calculated on the average of women's earnings compared to men's, by age group and by category of equivalent positions;

2. The rate gap of individual wage increases between women and men;

3. The percentage of employees who received an increase in the year following their return from maternity leave, if increases occurred during the period during which the leave was taken;

4. The number of employees of the under-represented sex among the ten employees who received the highest salaries.

In both cases, when a Workers’Counsil (CSE Social and Economic Committee) has been set up at the level of a social and economic unit recognized by collective agreement or by court decision between several legally distinct companies, the indicators are calculated at the level of the economic and social unit.

3) Method of calculating the indicators.

3.1) Indicator reference period.

These indicators are calculated according to a reference period of 12 consecutive months that the employer can choose.

Unlike companies with more than 250 employees, companies with fewer employees (between 50 and 250 employees) may choose to calculate the indicator for individual increases over a multi-year reference period, starting from 2 or 3 years. previous.

They are calculated no later than 1st March of the current year.

3.2) Publication of the results.

The results obtained by the company in relation to the above indicators are published each year on the company's website, or failing this, are made known to employees by any means.

They should also be included in the economic and social data base (base de données sociales).

3.3) Method of calculating the pay gap indicator.

For the pay gap indicator, employees are divided into groups according to four age groups and equivalent job categories.

The age groups are as follows:

  • Less than 30 years old;
  • 30 to 39 years;
  • 40 to 49 years old;
  • 50 years and over.

With regard to categories of equivalent jobs, the employer may apportion the employees, after consulting the Workers’Council (Social and Economic Committee), by level or hierarchical coefficient, according to the classification of branch or another method of job evaluation. The job evaluation method is adopted after consulting the Workers’Council (Social and Economic Committee).

If the company does not wish to distribute the employees by level or hierarchical coefficient or according to another method of job classification, or if these methods of distribution do not make it possible to calculate the indicator, it distributes the employees among the four socio-economic categories. following professionals:

  • Workers;
  • Employees;
  • Technicians, supervisors;
  • Engineers (ingénieurs) and executives (cadres).

Only groups with at least three men and at least three women are taken into account.

The average remuneration of women and men is calculated for each group thus formed by calculating the salary in full-time equivalent for each employee and then averaging it.

Example of the publication of the indicators of a company with more than 250 employees [10]

(Art. D.1142-2 Labour Code and art. D.1142-2-1 Labour Code)

 

Indicators in companies with more than 250 employees

Score

Method established in annex of the decree

 

Pay gap between women and men

• By age group

• By category of equivalent positions

/40

Equivalent position choice:

• level or hierarchical coefficient

• socio-professional categories

o Workers

o Employees

o Technicians, supervisors

o Engineers and executives

Age range:

• Under 30

• 30 to 39 years

• 40 to 49 years

• 50 years and over

Remuneration:

• Calculation in full time equivalent

• Groups taken into account at least 3 men or 3 women

Breakdown of individual salary increases (Ecart de répartition d’augmentations individuelles de salaire)

/20

Individual increase:

• Increase of the basic salary concerned

Breakdown of promotions (Ecart de répartition des promotions)

/15

 

% of employees increased in the year of return from maternity leave (% de salariées augmentées dans l’année du retour du congé maternité)

/15

Return year (Année du retour) :

• Reference year set by the employer

 

 Under-represented sex among the 10 highest earners (Sexe sous représenté parmi les 10 plus hautes rémunérations)

/10

Under-represented sex:

• Indicator between 0 and 10 based on the smallest number of men and women

 

 /100

Obligation to publish the score (Obligation de publication de la note)

 

4) Adequate and relevant measures of correction (Article L. 1142-9 of the Labour Code).

4.1 Workers’ Council (CSE) information and negotiation on professional equality.

In companies with at least 50 employees, when the results obtained by the company with regard to the indicators are below 75 points, the negotiation on professional equality will also cover the appropriate and relevant measures of correction and, where applicable, on the annual or multiannual programming of financial catch-up measures.

The indicators are made available to the workers council (CSE) according to the reference period set by the employer.

The results are presented by socio-professional category, level or hierarchical coefficient or according to the levels of the company's job classification method.

When the indicators cannot be calculated, the employer must provide the workers council (CSE) with explanations of the difficulties encountered.

In the absence of an agreement providing for such measures, these are determined by decision of the employer, after consultation with the social and economic committee.

The decision is filed with the administrative authority under the same conditions as the action plan mentioned in Article L. 2242-3.

4.2 Designation of a DIRECCTE (regional directorates for business, competition, consumption, labour and employment) referent.

The company can ask the regional director of DIRECCTE (regional directorates for business, competition, consumption, labour and employment), to designate one or more referents who will be in charge of assisting companies from 50 to 250 for the calculation of the indicators and, as the case may be, for the definition of adequate and relevant measures of correction.

The administrative authority may comment on the measures provided for in the agreement or decision of the employer.

5) Financial penalties: up to 1% of the payroll (Article L. 1142-10 of the Labour Code).

5.1) Threshold for triggering the sanction.

In companies with at least 50 employees, when the results obtained by the company, relative to the indicators mentioned in Article L. 1142-8, are below 75 points, the company has a time limit of three years to become compliant.

If the enterprise reaches a level of result equal to at least seventy-five points before the expiry of that period, a new period of three years is granted to it to implement corrective measures as from the year in which published a result level below this number.

5.2) Conduct of the sanction procedure.

If the result obtained during 3 consecutive years is less than 75 points, the following process is put in place:

  • The supervisory officer of the work inspector reports to the Director of DIRECCTE a report on the situation (Article D. 1142-9 French Labour Code);
  • The director informs the company that he intends to impose a penalty within 2 months of receiving the report (article D 1442-10 French Labour Code);
  • The director may hear the employer and take into account the following reasons for failure: economic difficulties, reorganizations or mergers, collective proceedings in progress (article D 1442-11 French Labour Code);

The director may then choose between:

- 1) a penalty of a penalty of 1% of the remuneration and earnings of the company on the basis of income from activities;

- 2) an additional period of up to one year.

5.3) Amount of the penalty.

The amount of the penalty is set at a maximum of 1% of the payroll for the calendar year preceding the expiry of the 3-year period.

The penalty is calculated on the basis of the activity income, as it is taken into account for the purpose of determining the basis of contributions due during the calendar year preceding the expiry of the three-year period left to the company to comply.

The proceeds of this penalty are allocated to the fund mentioned in Article L. 135-1 of the Social Security Code (L. 1142-10 French Labour Code).
 

Source: Decree No 2019-15 of 8th January 2019 (JO January 9th, 2019)

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000037964765&dateTexte=&categorieLien=id

 

Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)

Membre du Conseil de l’ordre des avocats de Paris

.Paris : 4 rue Bayard 75008 Paris - Tel: 01 42 56 03 00 ou 01 42 89 24 48
.Nantes : 41, Quai de la Fosse 44000 Nantes -  Tel: 02 28 44 26 44

E-mail : chhum@chhum-avocats.com

Blog: www.chhum-avocats.fr

http://twitter.com/#!/fchhum

 

 

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