Employment 2025

AUSTRIA Law and Practice Contributed by: Johannes Edthaler and Christina Hödlmayr, Edthaler Leitner-Bommer Schmieder & Partner Rechtsanwälte GmbH

Violation of Non-Compete Clauses If an employee violates a valid non-compete clause, the employer has several options. The employer can: • claim damages; or • pursue legal action to ensure the employee ceases the competing activity. Enforcement of Non-Compete Clauses The non-compete clause may generally only be invoked if: • the employee terminated the contract without a valid reason; • the employee resigned without a valid justification; • the contract was amicably terminated; • the fixed term ended; or • the employer dismissed the employee due to the employee’s own actions. The successful assertion of a claim for damages usu - ally fails because the amount of the damage incurred cannot be quantified with the legally necessary clarity. For this reason, it is possible to agree on a contractual penalty. Such a contractual penalty can be claimed in the event of a breach of the non-compete clause without having to prove the occurrence of damage. However, it is subject to the judicial right of modera - tion and is only effective if it does not exceed six times the net monthly remuneration due for the last month of the employment relationship. The agreement of a con - tractual penalty excludes claims for injunctive relief or compensation for further damage. 2.2 Non-Solicits In addition to the agreement of a general non-com - pete clause, non-solicitation clauses with reference to employees and with reference to customers may also be agreed between an employer and employee. Employee Protection Clause The term employee protection clause covers agree - ments according to which the employee may not work with the employer’s employees after termination of the employment relationship. Employee protection claus - es are usually to be qualified as non-compete clauses and must not restrict the former employee too much.

The full entitlement to parental leave of 24 months is only available if both parents take at least two months of parental leave. If only one parent takes parental leave, the duration is reduced to 22 months. There is an exception for single parents: they can still take parental leave until the child’s second birthday. Employee Liability Employees are only liable to a limited extent for dam - age they have caused at work. Their financial capac - ity is taken into account when determining the extent of their liability. For employees to be liable, damage must actually have occurred during the performance of the service. The damage must be the fault of the employee and there must be no grounds for exclu - sion of liability. The claim must not have lapsed or become time-barred. These provisions are regulated in the Employees’ Liability Act ( Dienstnehmerhaftpfli - chtgesetz ). 2. Restrictive Covenants 2.1 Non-Competes Agreement of Non-Compete Clauses Between Employer and Employee A non-compete clause is an agreement that restricts the employee’s employment in favour of the employ - er for the period after termination of the employment relationship. A non-compete clause can be agreed upon in employment contracts. The precondition for the admissibility of a non-com - pete clause is that the employee: • is of age at the time of the conclusion of the agree - ment; and • is entitled to remuneration (excluding special payment components) of more than EUR4,300 gross (for the year 2025) for the last month of the employment relationship. The restriction of gainful employment contained in the non-compete clause may only relate to the business sector of the relevant enterprise and may not exceed one year. At the same time, it must not deprive the employee of any possibility of gainful employment.

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