An attractive job offer is on the table, but the old employment contract contains a non-compete clause. Is the new employer allowed to work in the same industry? Must you wait a whole year? And can a high contractual penalty actually become due? In Austria, the answer does not depend on a single wording, but on several prerequisites.
What matters are the date of the agreement, the remuneration in the last month, the specific scope, the duration, and the way the employment relationship ends. This guide shows how employees can systematically assess a Non-compete clause in Austria before changing jobs. It offers general guidance; in the case of a specific contractual penalty, a cease-and-desist claim, or a disputed termination, the individual legal situation should be clarified with the Chamber of Labour, a trade union, or specialized legal counsel.
The quick check: Six questions before changing jobs
- Was the clause agreed at all?Search the employment contract and subsequent supplementary agreements for non-compete, competition, customer, or client protection clauses.
- When was it concluded?For agreements from December 29, 2015, different remuneration limits apply than for older clauses.
- What was the relevant remuneration?For new agreements, the remuneration in the last month of 2026 must exceed 4,620 euros gross.
- What is specifically prohibited?Business sector, activity, location, and time period must be checked.
- How does the old job end? Employee resignation, employer dismissal and termination by mutual agreement have different consequences.
- What sanction is specified in the contract? A contractual penalty is not automatically enforceable at any amount.
Only the interplay of these points yields a useful picture. The claim "Non-compete clauses are invalid anyway" is as risky as assuming that any signed clause would automatically bar someone from the entire labor market.
Non-compete prohibition and non-compete clause are not the same
The Non-compete prohibition concerns certain activities during the ongoing employment relationship. The Prohibition by a non-compete clause takes effect only after the end of the job. The The Chamber of Commerce distinguishes both terms explicitly.
During the current job, secondary employment, the duty of loyalty and trade secrets can also play a role. After leaving, the normal work obligation ends, but effectively agreed non‑compete restrictions and confidentiality obligations can remain in force. Anyone wanting to change jobs should examine these levels separately:
- Non-compete clause: restricts employment after the end of the job.
- Customer protection clause: is intended to prevent the poaching or servicing of certain customers.
- Confidentiality:Protects trade and business secrets; it should not simply be equated with an industry-wide ban.
- Return and deletion obligations:Pertain to documents, devices, copies of data, and access belonging to the former employer.
This separation is practically important. Even if a non-compete clause does not apply, employees are not allowed to take customer lists, calculations, or internal files with them.
When a non-compete clause can in principle be effective
For employees,§ 36 of the Salaried Employees Act four central limits. Comparable rules apply beyond Section 2c AVRAG also for employment relationships to which the Employees Act does not apply.
Legal age at signing
The person must be of legal age when the agreement is concluded. Thus, what matters is not only the age at a later job change, but the point in time when the clause was agreed.
Restriction to the business sector
The clause may only relate to an activity within the line of business of the previous employer. A blanket ban on any gainful employment goes too far. Nevertheless, "same industry" is not a purely formal question. Products, services, target groups and overlapping customer bases can be relevant to the actual competitive situation.
At most one year
The statutory maximum duration is one year after the end of the employment relationship. A restriction drafted for a longer period is not automatically enforceable for the entire extended period. Employees should, however, not simply ignore an overbroad clause, but have its specific scope reviewed.
No unreasonable hindrance to career advancement
The subject, duration and location of the restriction must correspond to the former employer's business interest. A clause can be problematic if it disproportionately hinders career advancement. Factors include specialization, the regional labor market, actual competition, duration, and geographic scope. Therefore there is no reliable one-word answer based solely on the contract title.
Calculate the 2026 pay threshold correctly
For non-compete clauses that were agreed from 29 December 2015 onward, the rule for 2026 is: the relevant monthly remuneration must, upon termination of the employment relationship, more than €4,620 grossbe met. At exactly €4,620 the threshold is not exceeded. This corresponds to twenty times the daily ASVG maximum contribution basis.
The Chamber of Labour explains the non-compete clause and the values for 2026,. According to their explanation, the relevant remuneration includes wages or salary as well as the average of irregular components such as overtime, allowances or commissions. Pro rata special payments are not included in new agreements.
Example 1: Fixed salary below the threshold
An employee agreed to the non-compete clause in 2024 and receives €4,500 gross in the last month without any other relevant remuneration components. The statutory pay threshold is not exceeded. For this reason the clause is invalid.
Example 2: Variable components are included
An employee receives a €4,300 fixed salary and, on the relevant average, €500 in commission. The relevant remuneration can thus amount to €4,800. The remuneration requirement would then be met. Whether the clause actually applies still depends on scope, duration and the type of termination.
Review older agreements separately
For agreements before 29 December 2015, the Chamber of Labour cites a threshold of €3,927 for 2026; special payment components are treated differently here. For very old agreements before March 2006, no remuneration limit may apply at all. Therefore the date of each supplementary agreement should be recorded. Not only the start of the employment relationship is decisive.
The type of termination also matters
A formally appropriate clause will not have the same effect in every termination.§ 37 Salaried Employees Act regulates important consequences. The details may depend on the parties' conduct, therefore the reason for termination should be properly documented.
Voluntary resignation
In the case of an ordinary termination by the employee, the non‑compete clause can generally become enforceable. An important exception exists if culpable conduct by the employer gave a justified reason for the termination or for a justified early departure. Such an exception should not be assumed without legal advice.
Termination by mutual agreement
In a termination by mutual agreement, the clause will generally remain in effect unless otherwise agreed in writing. This is precisely where a good negotiation opportunity lies: a waiver of the non‑compete clause can be expressly included in the termination agreement.
Termination by the employer
If the employer terminates, they generally cannot enforce the clause. Exceptions exist in particular if the employee’s culpable conduct gave justified cause for the termination, or if the employer declares at the termination that they will continue to pay the most recently due remuneration during the restriction period.
Justified dismissal or unjustified resignation
In the case of a justified dismissal or an unjustified premature resignation, the clause can generally remain effective. Whether conduct actually justifies a dismissal or a resignation is often disputed. Therefore, individual legal advice is particularly important before an immediate resignation and before starting at a new company.
Expiration of a fixed-term contract
If a fixed-term employment relationship ends due to expiration, an effective non-compete clause generally remains relevant. The end of the contract alone does not automatically eliminate it.
How far may the clause extend?
A good review translates the contract text into concrete work situations. Mark four dimensions:
- Activity:Is only a specific position prohibited, or any employment with the competitor?
- Business sector:Which products or services actually overlap?
- Territory: Gilt die Klausel für eine Stadt, Österreich, den DACH-Raum oder ohne erkennbare Grenze?
- Time: How many months after leaving should be covered?
Thereafter, the employer's legitimate interest in protection is weighed against the restriction on the employee's professional advancement. A sales manager with detailed knowledge of prices and major clients is assessed differently from an employee who takes a role outside their field without customer contact at the new company.
A move to a large corporation is not automatically prohibited merely because a single business unit competes. Conversely, a small company can be a direct competitor if the offering and client base overlap significantly. Job description and organizational assignment in the new position should therefore be recorded in writing.
Customer protection and confidentiality should be read separately
Customer-, client- or clientele-protection clauses are often drafted more narrowly than a general industry ban. The Supreme Court regards a a customer-protection clause is, in principle, a special type of non-compete clause. This also subjects them to additional statutory limits, including the maximum duration.
A confidentiality agreement is to be distinguished from that. According to the cited case law, merely contacting former clients is not automatically a breach of confidentiality. However, that does not mean internal customer lists or confidential information may be used. Before leaving, private devices, cloud storage and email forwarding should be checked for company data and lawfully cleared.
What a contractual penalty means
Many contracts secure the non-compete clause with a contractual penalty. For clauses agreed on or after 29 December 2015, it may not exceed six times the net monthly pay of the last month; special payments are excluded from this calculation.
If such a penalty is agreed, § 37 AngG provides for these newer agreements that the employer can only claim the forfeited penalty. An additional claim for enforcement of the clause or for compensation for further damage is then excluded. Contractual penalties are also subject to judicial reduction. However, this is no reason to deliberately violate a clause: even the dispute can become expensive and burdensome.
Different rules may apply to older agreements. Employees should therefore not only read the amount but also check the date of conclusion, the triggering event and the relation to the non-compete clause.
The seven-step plan before acceptance
1. Gather all contract documents
Check employment contract, written statement of employment, promotion letter, bonus agreements and subsequent amendments. The guide Check employment contract zeigt, welche weiteren Klauseln vor einer Unterschrift wichtig sind.
2. Provide evidence of the agreement date and the most recent compensation
Record when the clause was concluded. Gather the most recent payslip and documents on average overtime, allowances, or commissions. Do not calculate the compensation threshold solely from the fixed salary.
3. Compare the old and new lines of business
Describe the products, services, customer groups, and region of both companies. A factual table is more helpful than the blanket statement that both are 'somehow in the same industry'.
4. Define the new role in writing
Ask for a job description. Note whether you would at all work with former clients, products, or confidential pricing ranges. An internal ban on certain accounts can sometimes reduce the risk in practice, but it does not replace legal review.
5. Plan the type of termination
Do not sign a mutual termination agreement without addressing the non-compete clause. Also prepare the Termination meeting and the deadlinesbeforehand. The difference between voluntary resignation and termination by the employer can be decisive.
6. Negotiate a written waiver
Ask for clear wording, for example: “The employer irrevocably waives all rights arising from the non-compete and customer protection clause dated [Datum].” The exact phrasing should match the contract. A verbal assurance creates unnecessary evidentiary problems.
7. Seek professional advice before starting
If direct competition, customer contact, or a high contractual penalty are at stake, the review should take place before starting employment. Provide advisors with the full contract, the termination documents, pay statements, and the new job description.
How to bring up the clause with the new employer
A non-compete clause does not have to be the main topic in the first job interview. However, it should be clarified at the latest before you give a binding acceptance if the new position could be affected. Remain factual and do not pass on any confidential details of the former employer.
One possible phrasing is:
"My current contract contains a non-compete and/or customer protection clause. I will have the scope and the consequences of termination reviewed. For the assessment, please provide a written description of the proposed role, customer groups, and organizational placement."
Check the new offer in full regardless. The jobspot guide Check job offer helps with salary, working hours, probation period and benefits.
Three typical practical cases
Case 1: Voluntary resignation and direct competitor
A sales representative resigns voluntarily, earns €5,200 gross in the last month and is to manage the same major clients at a direct competitor. The salary threshold is exceeded and the type of termination does not preclude the clause. Now the scope, duration and customer protection must be carefully reviewed. A written waiver or a clearly delineated new role may be crucial.
Case 2: Termination by the employer without misconduct
A product manager is dismissed for organizational reasons. The employer does not state that the final pay will continue to be paid during the blocking period. A non-compete clause cannot generally be enforced. The dismissal and its justification should nevertheless be documented.
Case 3: Mutual termination under time pressure
A project manager receives an immediate mutual termination, but the text says nothing about the non-compete clause. Without an explicit waiver, it can remain in effect. Before signing, the termination should be supplemented in writing and the contractual penalty should be reviewed.
FAQ on the non-compete clause
Can the former employer prohibit a move into the entire industry?
Not automatically. The clause must relate to the business sector and must not unreasonably hinder professional advancement with respect to scope, duration and geographic area. How far a specific wording reaches is decided on a case-by-case basis.
Does the €4,620 threshold also apply to older contracts?
No. The threshold of more than €4,620 gross will apply in 2026 to clauses agreed from 29 December 2015 onward. For older agreements, other calculations apply, or for very old clauses there may be no remuneration threshold.
Does the year already begin during the notice period?
No. The non‑compete clause restricts employment for the period after the employment relationship ends. During the notice period the old job still exists and the ongoing duties continue to apply there.
Is an employer's email sufficient as a waiver?
A clear written declaration is better than an oral promise. Whether a specific email reliably covers all clauses and claims should be checked when the risk is high. Ideally there should be a precise agreement with a date and reference to non‑compete, customer and penalty clauses.
Am I allowed to inform former customers that I am changing jobs?
That depends on customer protection, any non‑compete clause, confidentiality obligations and the specific form of contact. Do not use exported customer lists and have any planned communication legally cleared in advance if a clause exists.
Conclusion: Check first, then resign and sign
A non‑compete clause is neither automatically ineffective nor an absolute ban on working. For a job change, relevant factors include the date of conclusion, remuneration, line of business, duration, geographical and subject‑matter scope, manner of termination, and any contractual penalty.
The most sensible next step is a complete set of documents: the contract and amendments, the most recent payslip, the planned form of termination, and the new job description. With this information, the clause can be examined specifically, a written waiver negotiated, and the transition planned before a termination or an offer creates irreversible facts.
