The Pay Transparency Act (EntGTranspG) has been in force in Germany since 2017. Work is currently underway to update and amend the law. The aim of this law is to eliminate unequal treatment in pay and ensure the necessary gender equality.
The principle stipulates that employees must receive a comparable salary for comparable work. However, salaries are not public information, so it is difficult to obtain precise information on the actual handling of salaries by gender and any unequal treatment is therefore easier to conceal. The Pay Transparency Act is intended to counteract this situation by introducing a right to disclosure. In companies with more than 200 employees, employees have the right to obtain information about the salaries of comparable employees.
It should be noted that this is sensitive and confidential data. Although salaries are not particularly sensitive data according to the definition in Art. 9, Para. 1 of the General Data Protection Regulation (GDPR), they have always harboured a certain potential for conflict. Sometimes there are even obligations in the employment contract to maintain confidentiality about one’s own salary. Due to the high risks for the data subject should this data be affected by a data protection incident, a common understanding has developed in companies that such financial data (e.g. payrolls and salary negotiations) should be treated as worthy of protection in the same way as health data. This means that the HR and finance departments of every company have a special responsibility when it comes to sharing data.
There is also a cultural aspect. People are reluctant to talk about money; very few people publicly disclose their own salary.
So how is the EntGTranspG compatible with data protection? How can it be ensured that employees of all genders are paid comparably and that employees have a right of control while at the same time maintaining confidentiality and data protection? And how is data protection affected by future amendments to the EntGTranspG?
Section 12 (3) EntGTranspG takes care of this. According to this paragraph, data protection must be maintained when responding to a request for information. With the exception of companies where there is no works council, this right to information must always be requested with the works council as an intermediary in order to protect the rights of all employees involved. The information must of course not be disclosed by name and must avoid any reference to an identified or identifiable person. The information must remain neutral and anonymous. Consequently, no detailed information is to be provided, only the gross remuneration.
Sentence 2 of this paragraph in particular supports this requirement. A comparative salary does not have to be stated if fewer than six employees of the opposite sex perform the comparative activities. This ensures a certain degree of anonymity and prevents conclusions being drawn about individual persons. Therefore, no detailed figures are published, only average values.
Although the threshold of 200 employees is to disappear in future and smaller companies will also have to provide evidence of equal treatment in terms of salaries, it is imperative that conclusions are avoided or at least minimised. The minimum number of comparable employees and the fact that only companies with a certain number of employees or more must implement the statutory right to information continue to guarantee a certain level of protection for this sensitive data. The same applies to the forthcoming obligation to provide information on the treatment of salaries before the start of an employment relationship: the aim is to avoid drawing conclusions or identifying individual employees.
In general, therefore, a balance must be struck between equal pay and data protection. In any case, data protection must be complied with when requesting information about salaries. This is a balancing act between the right to information and data protection. As with many things in data protection. And that is exciting.
