Jul
04
French Labour law - Equal pay for women and men: how to calculate the index ?

The implementation of the Gender Equality Index is complex.

Therefore, the Ministry of Labor published on February 14, 2019 a FAQ (See also our article Equal pay for women and men: the new rules applicable after Decree No. 2019-15 of 8 January 2019).

I) Scope.

A) Definition of the index.

For companies with more than 250 employees, there are five indicators to calculate the index (D. 1142-2 C.trav):

• the pay gap between women and men;

• the difference in rate of individual salary increase (excluding promotion);

• the promotion rate gap between women and men;

• The percentage of employees who received an increase in the year of their return from maternity leave;

• The number of employees of the underrepresented sex among the 10 employees who received the highest salaries.

For companies with between 50 and 250 employees, the index is calculated according to 4 indicators (D. 1142-2-1 C.trav):

• the pay gap between women and men;

• the difference in rate of individual salary increase (excluding promotion);

• The percentage of employees who received an increase in the year of their return from maternity leave;

• The number of employees of the underrepresented sex among the 10 employees who received the highest salaries.

B) Date of publication.

This index must be published on the website of the company, failing which it must be brought to the attention of employees by any means (OC 1442-4 of the Labor Code).

It must also be sent to the CSE as well as to the Ministry of Labor according to a teledication procedure (art D. 1142-5 C.trav).

As a reminder, the obligation to publish the index of the gender equality index varies according to the number of employees:

• Companies with at least 1,000 employees: publication must begin on March 1, 2019;

• Companies of at least 250: the publication must be made as of September 1, 2019;

• Companies with at least 50 employees: publication must begin on March 1, 2020.

In the absence of publication, the penalty is the same as in the absence of any measure aimed at reducing wage differences, and may be as high as 1% of the remuneration and earnings received by the company (L. 2242-8 C.trav).

The date of the first publication approaching, we must take stock of how the index is calculated.

II) Practical calculation methods.

To help companies calculate their index, the Ministry of Labor publishes on its website an Excel spreadsheet incorporating the 5 indicators, a frequently asked questions, as well as the list of regional referents.

A) Frequently Asked Questions (FAQ): The Essentials.

1) General framework

1.1) Over which period does the employer have to calculate the index?

1.1.1) What does the law say?

"The employer may choose the period of 12 consecutive months as a reference period for calculating the indicators.

The indicators are calculated each year by the employer, no later than 1 March of the current year, using data from the employer's annual reference period preceding the year of publication of the indicators. "

1.1.2) Details of the Ministry of Labor Ministry in the FAQ.

The Ministry of Labor states that the initial choice of the annual reference period for calculating the indicators commits the employer from one year to the next.

The change of reference period will be possible only for "a change in the constitution of the economic and social unit (UES), with sale or acquisition of one of the companies that make it up, or economic difficulty modifying the configuration of the company ".

1.2) Which employees to take into account?

1.2.1) What does the law say?

Are not taken into account in the company's workforce for indicator calculations:

• The trainees ;

• the holders of a professionalisation contract;

• employees made available to the company by an external company;

• expatriate employees;

• employees absent more than half of the annual reference period concerned.

1.2.1) Details of the Ministry of Labor in the FAQ.

The Ministry specifies that to be taken into account an employee must have been present in the company for at least 6 months, this period can be continuous or discontinuous.

Employees excluded from the calculation are those whose employment contract was suspended for more than 6 months during this period.

May be concerned, a sick leave, a maternity leave, a leave without pay or a CDD of less than 6 months.

2) Specific calculation of the indicators.

The 5 indicators presented below make it possible to calculate the global index on 100 points.

2.1) Calculation of the pay gap between women and men (out of 40 points).

2.1.1) What does the law say?

Employees are divided into 4 groups of different age groups:

• less than 30 years old;

• from 30 to 39 years old;

• 40 to 49 years old;

• and 50 and over.

Then they are divided into the following four socio-professional categories:

• workers ;

• employees;

• technicians and supervisors;

• engineers and executives.

These categories may be modified after consultation with the CSE, by level or hierarchical coefficient, in application of the industry classification, or another job rating method.

Only groups with at least 3 men and at least 3 women are taken into account.

2.1.2) Details of the Ministry of Labor in the FAQ.

The Department states that the job rating method does not result in a distinction of categories by trade or function.

However, the samples can be done, for example, by level of responsibility.

For example: a service technician may be in the same sample as a sales assistant, if their level of responsibility is the same and they are in the same age group.

On the other hand, the Ministry specifies that the companies whose branch agreement does not take over the 4 CSPs provided for in the CSP can group categories to have only 2 or 3.

The grouping of the two categories must correspond to the first step of their branch collective agreement, and can not be intended to create categories distinct from those of the decree.

2.2) Calculation of the difference in the rate of individual salary increase, excluding promotion (out of 20 points).

2.2.1) What does the law say?

The law specifies that employees must be divided into 4 groups according to the 4 CSP mentioned above.

The notion of individual increase corresponds to an individual increase in the basic salary of the employee concerned.

It is also specified that only groups with at least 10 women and 10 men are taken into account.

The difference is then calculated, in percentage points, for each of the groups, subtracting the rate of increase for women and men, then multiplied by the ratio of the total number of groups and summed to obtain the difference. overall.

2.2.2) Details of the Ministry of Labor in the FAQ.

On this indicator, the Ministry merely refers to the method of calculation, without specifying the reason for setting the threshold of 10 employees.

However, in our view, an explanation, or the possibility of a derogation, would have been welcome insofar as there is a risk of a threshold effect.

In fact, a group of 9 women with large individual increases between women and men will not be counted, whereas a firm with a group of 10 women with a smaller individual earnings gap may be at a disadvantage.

A company with 10 women executives, whose individual growth gap is similar to a company with 9, will be devalued in its overall.

Exceeding the threshold of 10, the group will be counted, while below it will not be taken into account.

2.3) Calculation of the difference in promotion rates between women and men (out of 15 points).

2.3.1) What does the law say?

The notion of promotion is defined as the change to a classification level or higher coefficient, in the branch classification or in the rating system chosen by the company.

2.3.2) Details of the Ministry of Labor in the FAQ.

The Ministry specifies on its website that the change to a classification level or higher coefficient is not related to the choice chosen for the distribution of employees in the job categories for the calculation of indicator 1.

It is also advisable for the company to be as transparent as possible on the method of promotion, so that the employees and the elected representatives in the CSE can clearly identify the notion of promotion.

2.4) Calculation of the percentage of employees who received an increase in the year of their return from maternity leave (out of 15 points).

2.4.1) What does the law say?

The law specifies that this indicator corresponds to the "percentage of employees who have returned from maternity leave during the reference year and who have benefited from an increase upon their return during the same period, if increases have occurred during the period of their leave".

If 100% of the women have benefited from an increase, the company gets a score of 15/15.

If only one of them has not been increased while falling into a category where the base salary has benefited from an increase, the indicator score is 0.

2.4.2) Details of the Ministry of Labor in the FAQ.

The Ministère specifies that for the calculation of the indicator, only employees who have had a maternity leave during which salary increases have taken place are taken into account.

For them, as stipulated in the law since 2006, a reassessment of their remuneration is required.

Thus, if an employee returns in December of maternity leave and that increases were paid during this period, she will have to have an increase on her return before the end of the year (if the calendar year is the reference period).

2.5. Calculation of the number of employees of the under-represented sex among the 10 employees who received the highest salaries (out of 10 points).

2.5.1) What does the law say?

The law specifies that the indicator is the smallest of the following two numbers: the number of women and the number of men among the employees who received the 10 highest salaries.

2.5.2) Details of the Ministry of Labor in the FAQ.

Nothing. No details are provided on this indicator.

III) Practical tools made available by the Ministry of Labor.

3.1) Designation of regional referents.

Regional representatives have been appointed within the Direccte to assist companies in calculating their index and to implement actions to reduce pay gaps within 3 years, otherwise they will be exposed to a penalty.

The amount of the penalty may be up to 1% of remuneration and earnings received by the company (art L. 1142-10 C.trav).

The list of referents is now available on the website of the Ministry of Labor.

3.2) Publication of an Excel spreadsheet for companies.

In order to facilitate the implementation of the Gender Equality Index, the Ministry of Labor has published an Excel spreadsheet incorporating the calculation methods defined by decree to help companies calculate their index.

This index represents a crucial new tool for employees in the proof of discrimination between men and women, and the Ministry of Labor deploys numerous resources for this tool to be effective.

 

Source:

• Access to the spreadsheet.

• Access to Frequently Asked Questions on February 14, 2019.

• Access to the list of DIRECCTE referents.

• Decree No. 2019-15 of 8 January 2019.

 

Frédéric CHHUM Attorney Avocat and Member of the Bar Council of Paris

Marion Simoné student lawyer - EFB Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris : 4 rue Bayard 75008 Paris tel : 0142560300
.Nantes : 41, Quai de la Fosse 44000 Nantes tel : 0228442644

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