February 11, 2026
Draft 2 tightens Dutch pay transparency rules and shifts key timelines and enforcement mechanics.
Category:
Pay Equity LegislationAuthor:
Adam Seoudi
/
Head of CX
Both drafts implement the core Directive rule that candidates must receive information about the pay for a position (or the applicable pay range) and, where relevant, the applicable collective agreement provisions. Both also prohibit employers from asking about an applicant’s current or past pay.
Draft 2, however, makes the timing requirement more explicit.
It provides that when offering a position, considering candidates, or providing job placement services, employers must share information on pay based on objective, gender-neutral criteria or the pay range for the role. Importantly, this information must be:
· provided in a way that enables informed and transparent pay negotiations; and
· in any event, provided before the start of pay negotiations.
The added “in any event before negotiations” language reduces ambiguity. It makes clear that disclosure cannot be postponed until late-stage discussions. From a compliance perspective, this means recruitment workflows must ensure pay-range disclosure happens early enough to structurally shape negotiations - not merely formalize them.
Importantly, as the explanatory memorandum clarifies, the information must be provided in a way that enables informed and transparent pay negotiations and, in any event, before the start of those negotiations. Disclosure during a discussion on employment terms does not meet this requirement. While the exact timing is left to employers, it must be early enough to allow candidates to genuinely use the information in negotiations and to ensure their bargaining position is not undermined.
The obligation is broad in scope. As the memorandum also notes, it applies not only to external candidates but equally to internal applications or transfers where pay negotiations take place. In the case of temporary agency work, user undertakings must provide the relevant pay information to the agency in due time, so that the agency can fulfil its transparency obligations towards the worker.
The prior draft bill required employers to have “loonstructuren” (pay structures) ensuring equal pay. Draft 2 reframes this obligation more structurally: employers must now have a system of job evaluation and classification that guarantees equal pay for the same or equivalent work (Wgbmv Art. 8).
Under Draft 2, this system must:
· cover all criteria relevant for evaluating and classifying roles;
· in any event include at least four core factors: skills, effort, responsibilities, and working conditions;
· rely exclusively on objective, gender-neutral criteria; and
· be applied in a gender-neutral manner, both in design and in practice.
The explanatory text clarifies that “objective criteria” always means gender-neutral criteria-both directly and indirectly and that neutrality must apply not only to how criteria are formulated, but also to how they are used. The four core factors (skills, effort, responsibilities, working conditions) are presented as minimum required elements, consistent with established EU guidance.
What disappears in Draft 2, however, is the prior draft’s explicit sentence stating that relevant behavioural skills (soft skills) must not be undervalued. While the requirement to include “skills” and “effort” remains - and effort may include mental and psychosocial effort - the removal of the explicit soft-skills safeguard shifts more interpretive weight to the Directive itself rather than embedding that warning directly in Dutch statutory text.
The prior draft bill introduced a dedicated Wgbmv Article 6b defining both “employer” and “worker” for the purposes of the transparency chapter and setting out counting rules in a separate provision.
Draft 2 removes that standalone definitional article and instead embeds the workforce calculation directly into Wgbmv Art. 10a(3), shifting the focus from abstract definitions to operational counting mechanics.
Under Draft 2:
· The number of workers in a given calendar year is calculated based on the total number of workers who performed work in the previous calendar year.
· A “worker” is defined as a person who had an employment contract (or public sector employment relationship) with the employer during that year.
· Agency workers made available under the Dutch temporary agency work framework are counted as workers of the user undertaking (inlener), not the agency.
· Part-time work must be expressed in fractions of annual full-time equivalents.
This makes threshold determination more technical and data-driven. Instead of relying on a newly crafted statutory definition of “employer,” Draft 2 operationalizes compliance through a precise counting formula - particularly relevant for employers close to the 100- or 250-worker reporting thresholds
Draft 2 retains the full reporting architecture required by the Directive. Employers with 250+ workers must calculate the listed pay gap metrics annually, and employers with 100–249 workers every three years, covering:
· overall gender pay gap;
· gaps in variable components;
· median gaps;
· quartile distribution; and
· category-based pay gaps split into basic and variable components.
As clarified in the explanatory memorandum, annual gross pay is reported without converting part-time salaries into full-time equivalents (FTE). In other words, annual pay figures are not normalised to a 1.0 FTE basis, meaning part-time work remains visible in the annual gender pay gap. By contrast, hourly gross pay inherently reflects working time and therefore allows for comparison independent of part-time factors.
Management must confirm the accuracy of the information, and reporting to the designated monitoring body must be done electronically. Employees must receive the category-based information under Art. 10c(1)(g).
The more significant operational development, however, lies in Art. 10c(6)–(7).
Under Draft 2, any employee may request clarification and specification of the reported information. The employer must provide a reasoned explanation within a reasonable period, and in any event no later than two months from the request.
Importantly, this right is not linked to the 5% joint pay assessment threshold. A worker may request justification regardless of the size of the pay gap. This means that even where the gap is below 5%, for example 3% and therefore does not automatically trigger a joint pay assessment under Art. 10d, the employer may still be required to explain and justify that difference upon request.
If the pay difference cannot be justified on objective, gender-neutral grounds, the employer must eliminate it “within a reasonable period.” Unlike the six-month remediation reference tied to the 5% joint assessment trigger, Art. 10c does not specify a concrete deadline. This creates a two-track system:
· at 5% or above (with no objective justification and no remediation within six months), structural consequences follow automatically;
· below 5%, there is no automatic trigger, but individual employees can still activate an obligation to justify and potentially correct differences.
From a compliance perspective, this significantly lowers the practical risk threshold. Employers cannot treat sub-5% gaps as legally irrelevant; they may still require documented, defensible justification at any time.
Draft 2 makes data protection explicit in the operative text. New Wgbmv Art. 10f provides that personal data processed under the pay transparency provisions may be used exclusively for the purpose of enforcing the principle of equal pay. This directly mirrors Directive Art. 12(2).
The explanatory memorandum goes further and situates the Dutch approach firmly within the GDPR framework (Regulation (EU) 2016/679). The reason is practical: even though most transparency mechanisms rely on aggregated data (e.g., average pay levels by sex within categories), there are situations in which reported information may directly or indirectly reveal identifiable salary data.
This risk is most acute in small groups. For example:
· where only one male and one female worker exist within a category performing the same or equivalent work;
· where a category contains only one or very few workers of one sex;
· or where reporting distinguishes between own employees and agency workers within narrow categories.
In such cases, even average figures may effectively disclose identifiable personal data. The memorandum explicitly acknowledges that this constitutes processing of personal data within the meaning of the GDPR.
The government’s position is that such processing is lawful because:
· it is necessary for compliance with a legal obligation and for the performance of a task carried out in the public interest (Art. 6(1)(c) and (e) GDPR);
· the legal basis is provided by EU law (the Directive) and its national implementing legislation (Art. 6(3) GDPR); and
· purpose limitation is ensured by restricting data use strictly to the enforcement of equal pay (Wgbmv Art. 10f).
Importantly, the Netherlands has chosen not to implement the optional safeguard under Directive Art. 12(3), which would have allowed identifiable information to be channelled only through workers’ representatives, labour inspectorates, or equality bodies. The government considers that such an intermediary model would unduly weaken employees’ informational position and access to justice.
The balancing exercise is therefore explicit: the fundamental right to equal pay (Art. 157 TFEU) is weighed against the right to data protection (Art. 8 EU Charter; Art. 16 TFEU; Art. 8 ECHR). The memorandum concludes that limited, purpose-bound disclosure of aggregated pay data—despite small-group identification risks—is proportionate to the objective of enforcing equal pay.
For employers, this means two things:
1. GDPR fully applies, and data disclosures must be carefully assessed in each case.
2. However, small-group identifiability does not automatically block disclosure where it is required under pay transparency rules - provided the data is used strictly for equal pay purposes.
In practice, the compliance challenge will lie in managing category design, aggregation logic, and internal governance in a way that respects GDPR principles while still meeting transparency obligations.
Draft 2 regulates agency work primarily through a Waadi Art. 12b, which governs information exchange between the user undertaking (inlener) and the agency (uitlener).
In the statutory text, Art. 12b requires the inlener to provide the agency with:
· pre-employment pay information (Wgbmv Art. 3(5));
· pay-setting and pay-progression criteria (Wgbmv Art. 10a);
· sex-disaggregated average pay levels by category (Wgbmv Art. 10b(1)).
The provision therefore regulates the flow of transparency-related information from the inlener to the agency.
However, the statute does not contain an explicit obligation requiring the agency to provide wage data to the inlener for the purposes of pay reporting under Wgbmv Art. 10c.
The explanatory memorandum, by contrast, states clearly that only the inlener reports on agency workers and explains that meaningful pay gap analysis must take place within the inlener’s organisational structure. It also acknowledges the shared responsibility within the triangular relationship.
What the memorandum does not do, however, is introduce a new legal basis for a reverse data flow (agency → inlener). As a result, Draft 2 places reporting responsibility squarely on the inlener, while regulating only one direction of information exchange in black-letter law.
Draft 2 reorganizes administrative enforcement under Wgbmv Chapter 4. The prior draft vested the main decision-making power for warnings/fines/penalty payments in the Minister and limited delegation. Draft 2 instead authorizes a designated official to impose four enforcement tools: an order to comply (eis), written warning, penalty payment order (last onder dwangsom), and administrative fine (bestuurlijke boete), with the Minister adopting policy rules for warnings and penalty payments (Wgbmv Art. 22b).
This institutional change sits against the Directive’s requirement that penalties be “effective, proportionate and dissuasive” and include fines (Directive Art. 23(1)–(2) ).
The Directive fixes the transposition deadline: Member States must have implementing measures in force by 7 June 2026 (Directive Art. 34(1)). Draft 2’s explanatory memorandum states the Dutch timeline was not achievable and references a parliamentary letter, indicating delay risk in the national timetable.
The Directive also fixes first reporting deadlines: - 250+ workers: by 7 June 2027 annually (Directive Art. 9(2)), - 150–249: by 7 June 2027 every three years (Directive Art. 9(3) ), - 100–149: by 7 June 2031 every three years (Directive Art. 9(4)).
The prior draft bill hard-coded first deadlines in Wgbmv Art. 22g. Draft 2 removes that clause and delegates the “first reporting date” to an AMvB (Wgbmv Art. 22f), creating a major “watch this space” development for employers’ planning.
Importantly, the memorandum still outlines a national phased approach:
· Employers with 150+ employees must submit their first report for calendar year 2027, no later than 7 June 2028.
· Employers with 100–149 employees must submit their first report no later than 7 June 2031.
Draft 2 materially implements the Directive’s core architecture:
Pre-employment pay transparency and salary-history ban. Draft 2’s new Wgbmv Art. 3(5)–(7) provides pre-employment pay-range information and prohibits asking about pay history. This is the core of Directive Art. 5(1)–(2).
Transparency of pay-setting criteria. Draft 2’s Wgbmv Art. 10a requires employers to make criteria used to determine pay and pay levels easily accessible, and applies the pay-progression criterion rule for employers with at least 50 workers. This sits within the Directive’s model in Directive Art. 6(1)–(2) (criteria transparency; Member States may exempt employers with fewer than 50 from the pay progression aspect).
Worker right to information. Draft 2’s Wgbmv Art. 10b provides: (i) a right to written information about the worker’s individual pay level and average pay levels broken down by sex for categories, (ii) a right to clarifications if inaccurate/incomplete, (iii) a two-month maximum response period, (iv) annual employer reminders, and (v) invalidity of pay-secrecy clauses. These closely align with Directive Art. 7(1)–(5) (and the two-month cap in Art. 7(4)).
Accessibility. Draft 2 introduces a targeted accessibility rule in Wgbmv Art. 1d (information under Wgbmv Art. 3(5), 10a, 10b must be accessible to persons with disability/chronic illness). This is a direct domestic analogue of Directive Art. 8.
Pay reporting metrics and thresholds. Draft 2’s pay reporting list in Wgbmv Art. 10c(1)(a)–(g) mirrors the Directive’s required pay-reporting variables in Directive Art. 9(1)(a)–(g), and applies at 100+ workers with frequency differentiated at 250+.
Joint pay assessment content and trigger logic. Draft 2’s Wgbmv Art. 10d broadly follows Directive Art. 10: 5% category trigger, lack of objective justification, failure to remedy within six months, and content elements such as analysis by categories, pay levels, reasons, and measures.
Purpose limitation on personal data. Draft 2’s new Wgbmv Art. 10f aligns with Directive Art. 12(2), which explicitly restricts use of personal data processed under the Directive’s mechanisms to equal pay enforcement only.
Proof rules and burden shifting. Draft 2’s restructuring places comparator rules (“single source,” non-simultaneous comparator, no real comparator alternative evidence) into Wgbmv Art. 11, aligning with Directive Art. 19(1)–(3).Draft 2’s burden of proof shift for noncompliance with transparency obligations is in Wgbmv Art. 11a, which corresponds to Directive Art. 18(2) and its “manifestly unintentional and minor” carve-out.
Monitoring body role. Draft 2’s Wgbmv Art. 10e assigns a designated body tasks that track Directive Art. 29(3), including collecting pay reporting data and publishing the “a–f” subset in a user-friendly way and making prior four years accessible if available.
Penalties. The Directive requires penalties to be effective, proportionate, dissuasive, include fines, and provide specific penalties for repeated infringements (Directive Art. 23(1)–(4)). Draft 2’s administrative enforcement chapter provides for an administrative fine and a doubling mechanism for repeated infringements within five years (Wgbmv Art. 22c), and for public disclosure of enforcement outcomes (Wgbmv Art. 22e), supporting deterrence in line with the Directive’s intent.
Draft 2 also introduces several legally significant uncertainties that employers should monitor and treat as “high-risk compliance dependencies”:
How will workers’ representatives’ roles be operationalized in reporting and joint pay assessment?
Directive Art. 9(6) requires management confirmation of reporting accuracy “after consulting workers’ representatives,” and representatives must have access to methodologies.Directive Art. 10(1) requires a joint pay assessment “in cooperation with workers’ representatives.”Draft 2 addresses representation through amendments to participation laws (WOR/Wms/WHW), but the precise “consultation/cooperation” mechanics will depend on how those amended rights are used in practice and whether AMvB or guidance clarifies methodology access.
What happens to temporary agency reporting if wage data is not legally required to flow to the inlener?
Draft 2’s memorandum says only the inlener reports on agency workers, but Draft 2 deletes the prior draft’s explicit Waadi duty for agencies to provide wage info necessary for inlener reporting. This creates a potential operational gap.
First reporting dates are now AMvB-dependent.
The Directive’s reporting start dates are fixed at EU level (2027/2031). Draft 2 moves national “first reporting” scheduling into AMvB (Wgbmv Art. 22f). Employers should plan using the Directive’s dates as the controlling baseline until the Dutch AMvB is known.
Transposition deadline tension.
Directive Art. 34(1) requires national measures by 7 June 2026. Draft 2’s memorandum flags that the envisaged timetable was not achievable, indicating a risk that the Netherlands may not meet the Directive’s deadline, which can affect when employers should expect obligations to bite nationally.
Even though Draft 2 is still a draft, its text is detailed enough to build a strong compliance program now -especially because many requirements are process and data architecture work (job evaluation systems, payroll data structure, category mapping) that take time.
Recruitment layer (applicants).
Ensure that -before pay negotiations -candidates receive documented information on: - initial pay or range based on objective, gender-neutral criteria (Draft 2 Wgbmv Art. 3(5)–(6); Directive Art. 5(1)), and - relevant collective agreement provisions where applicable (same provisions). Implement controls so recruiters do not request pay history (Draft 2 Wgbmv Art. 3(7); Directive Art. 5(2)).
Pay-setting and job architecture layer.
Draft 2 requires an objective system for job evaluation and classification (Wgbmv Art. 8) and requires that pay be valued according to that system (Wgbmv Art. 7(2)). This means employers should: - inventory current grading/job family systems, - verify that evaluation criteria are objectively applied and not gender-based.
Transparency-to-workers layer.
Implement internal publication of pay-setting criteria and pay level criteria (Draft 2 Wgbmv Art. 10a(1)), and for 50+ employers, pay progression criteria as well (Wgbmv Art. 10a(2); Directive Art. 6(2) exemption logic). Build an annual communications process because Draft 2 requires annual worker notification of the right to information (Wgbmv Art. 10b(4); Directive Art. 7(3)).
Information request handling.
Create a workflow to respond within two months to: - individual “right to information” requests (Draft 2 Wgbmv Art. 10b(3); Directive Art. 7(4)), and - employee requests to clarify/report pay-reporting outputs (Draft 2 Wgbmv Art. 10c(6)).
Reporting and joint pay assessment layer (100+ workers).
If you are 100+ (counted per Draft 2 Wgbmv Art. 10a(3)), start building: - the reporting dataset for Art. 10c(1)(a)–(g) and governance sign-off, - internal communication of category-based pay gaps (Art. 10c(5)), and - a “trigger playbook” for a 5%+ gap that is not objectively justified and not remediated within 6 months, which would activate a joint pay assessment (Wgbmv Art. 10d; Directive Art. 10(1)).
Accessibility and data protection layer.
Treat accessibility as a compliance duty: information under Wgbmv Art. 3(5), 10a, and 10b must be accessible to persons with disability/chronic illness (Draft 2 Wgbmv Art. 1d; Directive Art. 8).
Also embed purpose limitation controls around pay transparency data: Draft 2 Wgbmv Art. 10f restricts personal data usage to equal pay enforcement purposes, echoing Directive Art. 12(2).
Draft 2 enables not only fines but also public disclosure of enforcement outcomes (Wgbmv Art. 22e). Together with the Directive’s emphasis on deterrent penalties (Directive Art. 23), employers should assume that noncompliance can create reputational risk even before private litigation is considered.
Because Draft 2 removes the explicit Waadi duty for wage data to flow from agency to user undertaking (compared to the prior draft bill), employers relying heavily on agency labor should proactively: - include contractual clauses requiring wage and category data sharing sufficient for any reporting/joint pay assessment duties, and - determine whether the organization is counting agency workers toward thresholds (Draft 2 Wgbmv Art. 10a(3)(b)) and, if so, how reporting datasets will include them.
This is one of the most practical “gap areas” Draft 2 creates unless clarified by AMvB or guidance.
Yes in principle. The Directive applies to employers in public and private sectors (Directive Art. 2(1)) and Draft 2 amends Dutch equal treatment law in a way designed to cover both.
Under EU law, the Directive fixes first reporting deadlines (7 June 2027 for 150+ and 250+; 7 June 2031 for 100–149). Draft 2 moves the “first reporting date” into AMvB (Wgbmv Art. 22f), so Dutch national timing is not fully visible yet. Employers should plan against the Directive’s dates unless and until Dutch law validly sets the operational timetable.
Draft 2 Wgbmv Art. 10c(1) lists the same items required by Directive Art. 9(1)(a)–(g), including overall gender pay gap, gaps in variable components, median gaps, quartile distribution, and category-based gaps split into basic and variable components.
Under the Directive, it is triggered when pay reporting shows a ≥5% difference in average pay level within any category of workers, the employer cannot justify it on objective gender-neutral grounds, and it is not remedied within six months (Directive Art. 10(1)). Draft 2 Wgbmv Art. 10d implements this trigger logic domestically.
The Directive requires that workers not be prevented from disclosing their pay and that contractual restrictions be prohibited (Directive Art. 7(5). Draft 2 similarly invalidates contractual terms that prevent workers from disclosing pay for enforcing equal pay (Wgbmv Art. 10b(5)–(6)).
The Directive requires effective, proportionate, dissuasive penalties including fines (Directive Art. 23(1)–(2)). Draft 2 creates administrative enforcement tools (order to comply, warning, penalty payment order, and administrative fine; Wgbmv Art. 22b) and provides for increased fines for repeated infringements (Wgbmv Art. 22c), plus publication of enforcement outcomes (Wgbmv Art. 22e).
From an employer’s operational perspective, the biggest changes are: - first reporting dates moved to AMvB (loss of statutory “June 2027/2031” language), - the enforcement decision-maker shifts from the Minister to a designated official, - deletion of an explicit agency-to-user wage data-sharing duty (despite inlener reporting expectations), - removal of the explicit “soft skills not undervalued” clause from Article 8, and - new explicit accessibility and data protection purpose-limitation clauses.
No. It is a draft legislative proposal and explanatory memorandum. However, many of its obligations mirror fixed Directive requirements that will apply once the Directive is implemented nationally, and some deadlines are fixed at EU level (notably Directive Art. 34(1) and reporting start points in Directive Art. 9(2)–(4)).
