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05. Pay Equity Laws

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05. Pay Equity Laws

Extent of Protection

In this regard, we indicate that, although our Constitution has regulated specific rights such as not to be discriminated against or to be treated equally, until recently there were no regulations that specifically regulated salary discrimination.

This being the case, on 27 December 2017, Law No. 30709 “Law that prohibits remunerative discrimination between men and women” was published, the same that has the purpose of prohibiting remunerative discrimination between men and women, by determining categories, functions and remuneration for equal work. Although the norm was issued with the presumed purpose of only eliminating labour discrimination based on gender, in reality it implies that the beneficiaries do not have the payment of better remunerations in situations where the same work is carried out, this regardless of the gender of the workers.

The aforementioned Law imposed as a new obligation for the worker the creation of category charts, in accordance with what is regulated by its article 2, which provides the following:

Article 2. Category charts

The companies that have tables of categories and functions maintain said tables, provided that they correspond to the purpose of this law.

As can be seen, the rule requires workers to have a table of categories and functions, which will serve to verify that workers receive remuneration established according to their abilities and objective criteria, which will help avoid discriminatory situations when doing the same job.

The company must prepare a Salary Policy on remuneration categories in accordance with objective criteria. In the absence of objective criteria, the existence of salary discrimination will be considered.

Keep in mind that the minimum aspects that a salary policy must contain are:

  • Structure of positions and salaries (including other remuneration): classification of positions and bands or salary scales.
  • Remuneration for each job.
  • Criteria or guidelines for the granting of the different concepts that are paid to the personnel.
  • Identification and explanation, in general terms, of the methodology applied in force to measure and compare in an objective and non-discriminatory manner the relative value of the different positions.
  • Identification of criteria that justify the payment of different remunerations for jobs of equal value. For example, seniority, experience, productivity, collective bargaining, among others.
  • Identification of the measures adopted to prevent periods of temporary incapacity for work from having an adverse impact on the assignment of salary increases and/or benefits of any other nature. The salary policy must expressly contain the provision of said periods are considered as actually worked in accordance with current regulations.
  • Forecast of assumptions of wage readjustments: they can be due to individual or collective reasons.
  • Forecast of the design and implementation of a Salary Equality Plan: planning tool to diagnose, measure and reduce existing salary gaps between men and women.

Remedies

If a company does not comply with the equal remuneration regulations, the company may be subject to:

  • Inspection by the Ministry of Labour, initiated ex officio or by worker complaint.
  • From the judiciary, through a labour process filed by a worker who requests homologation of remuneration with someone who occupies a similar position.

Enforcement/Litigation

If the worker is not satisfied with the labour practices of his employer, he can resort to the Labour Administrative Authority, through the National Superintendence of Labour Inspection – SUNAFIL, even if he carries out an inspection of the company in order to establish that it has not incurred in any action that or lack that is deserving of sanction. On the other hand, the employee could initiate a lawsuit requesting the homologation of position or remuneration.

Other Requirements

The employer must comply with informing its workers about the salary or remuneration policy that it implements, as well as about the performance evaluation criteria or any other type that affect their remuneration. To do this, they may hold individual or collective informative meetings or send written communications detailing the applicable policy. This information must be provided at the time of the worker’s entry, when there is a change in the occupational category to which the worker belongs and when there is a change in the remuneration regime that applies to him in accordance with the remuneration policy.

Any questions

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