An attractive job offer is on the table, but the old employment contract contains a non-compete clause.Is the new employer allowed to operate in the same industry? Must one really wait a whole year? And can a high contractual penalty actually become payable? The answer in Austria does not depend on a single wording, but on several conditions.
Decisive are the date of the agreement, the remuneration in the last month, the specific scope, the duration and the manner in which the employment relationship ends. This guide shows how employees can systematically review a non-compete clause in Austria systematically before changing jobs. It offers a general orientation; in the case of a specific contractual penalty, injunction claim or disputed termination, the individual legal situation should be clarified with the Chamber of Labour, a union or specialized legal advice.
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 29 December 2015 onwards, different remuneration thresholds apply than for older clauses.
- How high was the relevant remuneration? For new agreements, the remuneration in the last month in 2026 must exceed €4,620 gross.
- What is specifically prohibited? Business sector, activity, location and period must be examined.
- How does the old job end? Resignation by the employee, dismissal by the employer and mutually agreed termination have different consequences.
- What sanction is specified in the contract? A contractual penalty is not automatically valid at any amount.
Only the interplay of these points gives a useful picture. The statement 'Non-compete clauses are invalid anyway' is just as risky as assuming that every signed clause automatically blocks the entire job 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 Chamber of Commerce distinguishes both terms explicitly.
During the existing job, secondary employment, duty of loyalty and trade secrets can also play a role. After leaving, the normal work obligation ends, but effectively agreed competition restrictions and confidentiality obligations can continue. Anyone wishing to change jobs should examine these levels separately:
- Non-compete clause: restricts gainful employment after the end of the job.
- Customer protection clause: is intended to prevent poaching or servicing of certain customers or clients.
- Confidentiality: protects operational and trade secrets; it is not simply equivalent to a sectoral ban.
- Return and deletion obligations: concern documents, devices, data copies and access rights of the former employer.
This separation is practically important. Even if a non-compete clause does not apply, employees must not take customer lists, cost calculations or internal files.
When a non-compete clause can generally be effective
For employees, § 36 of the Employees Act names four central limits. Comparable rules also apply via § 2c AVRAG also for employment relationships to which the Employees Act does not apply.
Majority at the time of conclusion
The person must have been of legal age when the agreement was concluded. Therefore, not only the age at the later job change is decisive, but the time when the clause was agreed.
Restriction to the business sector
The clause may only relate to activities in the business sector of the former employer. A blanket ban on any employment goes too far. Nevertheless, 'same industry' is not a purely formal question. Products, services, target groups and overlapping customer circles 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 longer-formulated restriction is not simply enforceable for the entire extended period. Employees should not ignore an excessive clause on their own, but have its specific scope examined.
No unreasonable hindrance to professional advancement
The subject, time and place of the restriction must fit the commercial interest of the former employer. A clause can be problematic if it disproportionately impedes professional 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.
Calculating the 2026 remuneration threshold correctly
For non-compete clauses agreed from 29 December 2015 onwards, the following applies in 2026: The relevant monthly remuneration at the termination of the employment relationship must exceed €4,620 gross be greater. 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,. To the relevant remuneration, according to their presentation, count 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 received €4,500 gross in the last month without further relevant remuneration components. The statutory remuneration threshold is not exceeded. For this reason the clause is ineffective.
Example 2: Variable components count
A worker receives €4,300 fixed salary and an average of €500 commission. The relevant remuneration can thus be €4,800. The remuneration requirement would then be met. Whether the clause actually applies still depends on scope, duration and type of termination.
Examine older agreements separately
For agreements before 29 December 2015, the Chamber of Labour gives a threshold of €3,927 for 2026; here special payment shares are treated differently. For very old agreements before March 2006 there may be no remuneration threshold 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 proper clause does not become effective in the same way for every termination. § 37 Employees Act governs important consequences. The details can depend on the conduct of the parties, therefore the reason for termination should be properly documented.
Resignation by the employee
In a normal resignation by the employee, the non-compete clause can in principle come into effect. An important exception exists if the employer's culpable conduct provided a justified reason for the resignation or a justified premature exit. Such an exception should not be assumed without advice.
Mutual termination
In a mutual termination, the clause generally remains in force if nothing else is agreed in writing. This is precisely a good negotiation opportunity: waiver of the non-compete clause can be expressly included in the termination agreement.
Employer dismissal
If the employer terminates, he generally cannot assert the clause. Exceptions exist in particular if the employed person, through culpable conduct, gave justified cause for the termination or if the employer declares upon termination that he will continue to pay the last due remuneration during the restriction period.
Justified dismissal or unjustified departure
In a justified dismissal or an unjustified premature departure, the clause can generally remain effective. Whether conduct actually justifies a dismissal or a departure is often disputed. Therefore individual advice is particularly important before an immediate exit and before starting at the new company.
Expiry of a fixed-term contract
If a fixed-term employment relationship ends by expiry of time, an effective non-compete clause generally remains relevant. The end of the contract alone does not eliminate it.
How far may the clause reach?
A good review translates the contract text into concrete work situations. Mark four dimensions for this:
- Activity: Is only a specific function prohibited or any employment with the competitor?
- Business sector: Which products or services actually overlap?
- Territory: Does the clause apply to a city, Austria, the DACH region or without a discernible boundary?
- Time: How many months after exit should be covered?
Afterwards the employer's legitimate protective interest is compared with the restriction on professional advancement. A sales manager with detailed knowledge of prices and major customers is to be assessed differently than an employee who takes on a non-related task without customer contact at the new company.
A move to a large corporation is also not automatically prohibited just because a single business unit competes. Conversely, a small company can be a direct competitor if offerings and customer base strongly overlap. Job description and organizational assignment in the new job should therefore be recorded in writing.
Read customer protection and confidentiality separately
Customer, client or client protection clauses are often formulated more narrowly than a general industry ban. The Supreme Court considers a customer protection clause to be, in principle, a special type of non-compete clause. This means additional statutory limits apply to them as well, including the maximum duration.
A confidentiality agreement is to be distinguished from this. Mere contact with former customers, according to the cited case law, is not automatically a breach of confidentiality. However, this does not mean internal customer lists or confidential information may be used. Before leaving, private devices, cloud storage and email forwards should be checked for company data and lawfully cleaned.
What a contractual penalty means
Many contracts secure the non-compete clause with a contractual penalty. For clauses agreed from 29 December 2015, it may not exceed six times the net monthly remuneration of the last month; special payments are disregarded in this calculation.
If such a penalty is agreed, § 37 of the Employees Act provides for these newer agreements that the employer can only claim the forfeited penalty. Any additional claim for enforcement of the clause or compensation for further damage is then excluded. In addition, contractual penalties are subject to judicial mitigation. However, this is no reason to intentionally breach a clause: even the dispute can be costly 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 accepting
1. Collect all contract documents
Check the employment contract, service note, promotion letters, bonus agreements and later addenda. The guide Check employment contract shows which other clauses are important before signing.
2. Document the agreement date and last remuneration
Note when the clause was concluded. Gather the last payslip and documents on average overtime, allowances or commissions. Do not calculate the remuneration threshold solely from the fixed salary.
3. Compare the old and new business sectors
Describe 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. Narrow down the new position in writing
Request a job description. Record whether you would work with former customers, products or confidential price ranges at all. An internal ban on certain accounts can sometimes practically reduce the risk, but does not replace legal review.
5. Plan the type of termination
Do not sign a mutual termination without addressing the non-compete clause. Also prepare the termination meeting and deadlines in advance. The difference between resignation by the employee and dismissal by the employer can be decisive.
6. Negotiate a written waiver
Ask for a clear formulation, for example: 'The employer irrevocably waives all rights arising from the non-compete and customer protection clause dated [date].' The specific wording should fit the contract. A verbal promise creates unnecessary evidentiary problems.
7. Obtain expert advice before starting
If direct competition, customer contact or a high contractual penalty are at issue, the review should take place before starting work. Present advisors with the complete contract, termination documents, payslips and the new job description.
How to raise the clause with the new employer
A non-compete clause does not have to be the main topic in the first interview. However, it should be clarified at the latest before the binding offer if the new role could be affected. Remain factual and do not disclose confidential details of the former company.
One possible phrasing is:
'My current contract contains a non-compete or customer protection clause. I will have the scope and consequences of termination reviewed. For the assessment, I would like a written description of the intended duties, customer groups and organizational assignment.'
Also review the new offer completely regardless. The Jobspot guide Check a job offer helps with salary, working hours, probationary period and benefits.
Three typical practical cases
Case 1: Resignation by the employee and direct competitor
A sales representative resigns, earned €5,200 gross in the last month and is to manage the same major customers at a direct competitor. The remuneration threshold is exceeded and the type of termination does not speak against the clause. Scope, duration and customer protection now need to be closely examined. A written waiver or a clearly delineated new role can be central.
Case 2: Employer dismissal without misconduct
A product manager is dismissed for organizational reasons. The employer does not declare that he will continue to pay the last remuneration during the restriction period. A non-compete clause generally cannot be asserted. 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 continue to apply. Before signing, the termination should be supplemented in writing and the contractual penalty checked.
FAQ on the non-compete clause
Can the former employer prohibit a move to the entire industry?
Not categorically. The clause must relate to the business sector and must not unreasonably hinder professional advancement by subject, time and place. How far a specific text reaches is a question of individual circumstances.
Does the €4,620 threshold also apply to older contracts?
No. The threshold of more than €4,620 gross applies in 2026 to clauses agreed from 29 December 2015. Different calculations apply to older agreements 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 gainful employment for the time after termination of the employment relationship. During the notice period the old job still exists; ongoing duties apply there.
Is an email from the employer sufficient as a waiver?
A clear written declaration is better than a verbal promise. Whether a specific email securely covers all clauses and claims should be checked in high-risk cases. Ideal is a precise agreement with 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, the non-compete clause, confidentiality and the concrete contact. Do not use exported customer lists and coordinate planned communication in advance with legal advice if a clause exists.
Conclusion: First review, then resign and sign
A non-compete clause is neither automatically ineffective nor an inviolable professional ban. For changing jobs, the date of conclusion, remuneration, business sector, duration, spatial and substantive scope, type of termination and a possible contractual penalty count.
The most sensible next step is a complete file of documents: contract and addenda, last payslip, planned form of termination and new job description. With this information the clause can be specifically reviewed, a written waiver negotiated and the move planned before resignation or acceptance create irreversible facts.
