The deadline for implementing the EU Pay Transparency Directive expired on June 7, 2026, and German implementing legislation is still pending. For employees in the private sector, this means that salary ranges in job advertisements and the prohibition of asking about previous earnings are not yet enforceable, because directives do not have direct effect between private individuals.
The most effective lever, therefore, lies not in the new directive, but in a right that has existed since 2017 and is hardly used. According to the Pay Transparency Act, you can request the comparable salary of colleagues of the opposite sex. If your salary is below the disclosed median, this, according to the Federal Labor Court's jurisprudence, establishes a presumption of discrimination, and the employer must prove objective reasons for it.
We are Smart Employment Law, a law firm with two offices in Hamburg specializing exclusively in employment law. We advise and represent employees, employers, and works councils. Because we understand compensation systems from the employer's perspective as well, we know how comparison groups are formed and when information might reveal more than the employer intends.
The answer is currently twofold. There are rights that already exist but are rarely used. And there are rights that come with the EU Pay Transparency Directive but are still awaiting legislation in Germany. We categorize both here so you know what rights you can currently invoke and what you cannot.
The most important information at a glance
- Deadline expired: The EU directive should have been implemented by June 7, 2026. A German implementing law has not yet been passed.
- The old legal situation applies: The Pay Transparency Act of 2017, with its right to information in companies with more than 200 employees, remains the relevant legislation for the time being.
- Public service: Employees of public employers can already directly invoke the directive under certain conditions.
- Median as leverage: If your salary is below the reported median of the comparison group, this indicates discrimination according to the case law of the Federal Labour Court.
- Negotiation skills don't count: An employer cannot justify unequal treatment by claiming that a colleague negotiated better.
- Please observe the deadlines: A two-month deadline applies to claims for compensation, and contractual or collective bargaining agreement exclusion periods can cut off back payments early.
What happened on June 7, 2026, and what didn't
The EU Pay Transparency Directive entered into force in June 2023 and was supposed to be transposed into national law by June 7, 2026. Germany missed this deadline. A government commission presented proposals for a streamlined implementation in November 2025, but these did not initially result in a draft law. Cabinet deliberations were repeatedly delayed, and a date for its entry into force has not yet been set.
For employees in the private sector, this means that the directive does not apply directly between you and your employer. You cannot, therefore, argue that a salary range should have been included in the job advertisement. What remains is the interpretation of existing law in accordance with the directive. Since the deadline expired, labor courts must interpret the German Pay Transparency Act in such a way as to achieve the directive's objective as far as possible. The extent to which the courts will go in this regard is still open and will be decided in the coming months.
The situation is different in the public sector. According to the case law of the European Court of Justice, employees can, under certain conditions, directly invoke an unimplemented directive against public employers. Those working for a public authority, municipality, or public company therefore have a stronger case today. We provide an overview of further changes this year in our article on... Labor law changes 2026.
A look at the figures explains why this issue is so politically contentious. In Germany, women earn on average around 16 percent less than men. Part of this gap can be explained by industry, working hours, and position. However, a difference remains that cannot be justified by objective criteria, and this is precisely where the principle of equal pay comes in. For you personally, however, the statistics are merely the starting point. Enforcing your claim depends on your own individual circumstances and your own peer group.
Your rights today: the right to information
The most important lever has existed since 2017 and is hardly used. The Pay Transparency Act gives you an individual right to information about the criteria used to determine your pay and about the comparative pay of colleagues of the opposite sex who perform the same or equivalent work.
Whoever has the claim
Currently, the requirement is a company with more than 200 employees at the same employer. The decisive factor is the number of employees at the individual company, not across the entire group. Two locations with 120 employees each are therefore insufficient under the current regulations. Additionally, the comparison group must include at least six employees of the opposite sex; otherwise, no information is provided. These thresholds are precisely what will be eliminated with the implementation of the directive.
How to make the claim
The request must be submitted in writing, either by letter or email. You must specify the comparable activity, i.e., the activity you consider to be the same or equivalent. Describe this activity in terms of its content and requirements, not the job title, as the title is irrelevant. You may also request information on up to two individual components of your salary, such as allowances or bonuses.
If your employer is bound by a collective bargaining agreement, you should generally address your request to the works council, which will then forward it to the employer. In companies without a collective bargaining agreement, you should contact the employer directly. They are required to provide the information within three months. This applies to variable components such as bonuses or other compensation. Bonus in labor law Targeted inquiry is particularly worthwhile because that's where the biggest differences arise.
What you will receive
The information provided does not show the salary of an individual colleague, but rather the median of the average monthly gross salary of the comparison group, converted to full-time equivalents. This includes the criteria and procedures used to determine the salary. The median is the middle value in the ranking, meaning the amount earned by the person in the middle of the group. We explain how individual bonuses are classified in the article on... Special payments and bonuses.
Equal or equivalent work: the dispute over the comparison group
Success is usually determined not by the legal question, but by the comparison group. The employer will define this group narrowly so that as few colleagues as possible, or those who are paid the lowest possible, end up in it. They have an interest in the appropriate group.
Work is considered equivalent if the activity is identical or interchangeable. Work is considered equivalent if it can be considered comparable according to objective criteria. These criteria include qualifications, professional experience, responsibilities, the nature of the requirements, and the working conditions. The job title, department, or internal pay grade is irrelevant. Therefore, a purchasing clerk can be comparable to a sales clerk if the requirements and responsibilities are the same.
For your inquiry, this means: Describe your work based on these criteria and also name the comparable job. The more specifically you describe your tasks, budget responsibilities, personnel responsibilities, required qualifications, and workload, the harder it will be for the employer to artificially reduce the size of the group. Also, note which colleagues you consider to perform comparable work, even if their salaries are not disclosed to you.
What the median reveals and what follows from it
The crucial point comes after the information is provided. The Federal Labor Court has ruled that a salary below the reported median of the comparison group of the opposite sex establishes a presumption of gender discrimination. This effectively reverses the burden of proof: The employer must then demonstrate that the difference is based on objective, gender-neutral grounds.
Objective reasons for dismissal include, for example, professional experience, qualifications, scope of responsibility, length of service, or measurable differences in performance. The employer must specifically present and substantiate these reasons. General references to the market or established structures are insufficient.
If the employer refuses to provide the information altogether, they further weaken their position. The courts consider a failure to provide information to their detriment because they possess the information and you do not. This is another reason why a written request is a sensible first step, even if you do not yet intend to file a lawsuit.
Negotiation skills are not a justification.
One argument we regularly hear in legal proceedings is that the male colleague was simply a better negotiator. The Federal Labor Court has set a clear limit to this justification. A higher salary cannot be justified simply because a male colleague demanded more during the hiring process. Anyone performing the same or equivalent work is entitled to equal pay, regardless of their negotiating skills.
Employers should be similarly cautious when using the argument of a skills shortage. A temporary market supplement can be objectively justified, but it must then be comprehensibly documented and time-limited. Without this documentation, the unequal treatment remains contestable. In such cases, in addition to the right to wages, a AGG compensation for discrimination be considered.
Money: Back payments, compensation and deadlines
If discrimination is established, there are two non-mutually exclusive options. First, the right to equal pay, meaning an increase in your salary and retroactive payment of the difference. Second, compensation for the discrimination itself, which is paid independently of the lost wages.
The deadlines are where things get tricky. Claims for compensation must be submitted in writing within two months of becoming aware of the discrimination. While back pay is subject to a three-year statute of limitations, many employment contracts and collective bargaining agreements contain exclusion periods of often three months. Anyone who hesitates for six months after receiving the information risks losing claims that would otherwise have been valid.
Many employees hesitate due to concerns about their employment. This concern is understandable, but legally addressed. Anyone who requests information or demands equal pay is exercising a right. Any discrimination in response is unlawful, and the prohibition against retaliation explicitly protects you. If a warning, transfer, or dismissal follows shortly after your request, this temporal connection is a point of reference that we will examine.
Practical consequence: As soon as you receive the information, assert your claims in writing as a precautionary measure, even if you don't yet plan to file a lawsuit. Asserting your claims is not a termination of the relationship of trust, but rather the observance of a deadline.
That comes with the new law.
The directive goes significantly beyond current German law. These are the points that employees will feel most acutely.
- Salary stated in the job advertisement: Applicants must be informed of the starting salary or salary range before the interview.
- No question about the initial salary: Employers are no longer allowed to ask about previous salaries, so that old inequalities are not perpetuated.
- Information will be available in two months: The response time is shortened, and the threshold of 200 employees is eliminated.
- Reporting obligations: Employers above a certain size must report and publish pay differences to an authority, tiered according to the number of employees.
- Burden of proof: In cases of violations of transparency obligations, the employer bears the burden of proof that no discrimination has occurred.
- Joint assessment: If the difference in pay exceeds a threshold and is not explained, the employer must carry out a pay assessment together with the employee representatives.
Important for managing expectations: These obligations only apply in the private sector once the German law is in force. The timeline is currently unclear. Therefore, check the status before invoking any of these obligations. In companies with employee representation, the following also applies: Tasks of the Equal Opportunities Officer a sensible first point of contact.
If you work in the public sector
The situation is more favorable for employees of public authorities, municipalities, universities, or public companies. Because the state itself did not implement the directive in a timely manner, it cannot, under certain circumstances, invoke the lack of legislation against its employees. The provisions of the directive must be sufficiently clear and unconditional, which is largely assumed to be the case with regard to the right to information.
In practical terms, this means you can request information about your own pay, the criteria used to determine your pay, and the average pay of comparable groups, regardless of the 200-employee threshold. The directive stipulates a two-month response period. Whether and to what extent a labor court follows this depends on the individual case, which is why the request should be carefully justified.
Here's how to proceed
- Describe the comparable activity: Note down tasks, responsibilities, qualifications and working conditions, not the job title.
- Request information: In written form, specifying the comparable activity and up to two salary components.
- Collect evidence: Employment contract, job description, target agreements, certificates, training courses, pay slips.
- Check answer: Check the plausibility of the median, comparison group, and criteria for determining remuneration.
- Meet deadlines: Claims must be made in writing, keeping an eye on the two-month deadline and exclusion periods.
With variable compensation models, it's worth taking a closer look at the program terms and conditions, for example, with stock option plans. Our article on this topic highlights the potential pitfalls. Restricted Stock Units as variable compensation. We will explain why specialization makes a difference in such procedures in the following sections. Advantages of a specialist lawyer for employment law.
Frequently asked questions about pay transparency
Request information and evaluate it correctly.
The right to information is a blunt instrument if the request is imprecise, but a powerful tool if it's well-crafted. We formulate the request, analyze the response, and advise you on whether a supplementary payment can be enforced. If you suspect you're being paid below your fair market value, Describe your case to us. The initial consultation with a brief assessment is free of charge, and we will get back to you promptly.
author
Raphael Lugowski
Raphael Lugowski is a specialist lawyer for employment law and has been advising employees, works councils, and staff councils in all areas of individual and collective employment law since 2016. His areas of expertise include: protection against dismissal, termination agreements, works constitution law, and employment law at the intersection of digitalization and AI.
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