1. Introduction
Employers and employees may agree that the employee may only engage in limited gainful employment after termination of the employment relationship. This is known as a non-competition clause (“Konkurrenzklausel”). The purpose of this is to protect the employer: the former employee should not be able to simply take the know-how they have acquired with them to compete after termination of the employment relationship.
However, restrictions are placed on non-competition clauses to protect employees (§§ 36 f AngG):
The restriction must relate to the employer's line of business,
may not exceed one year, and
may not unreasonably impede the employee's career advancement.
A minor cannot be bound by such a clause.
The remuneration limit is also decisive: if the employee earns less than the value specified in this remuneration limit, they cannot be bound by a non-competition clause. The remuneration limit is adjusted annually and amounts to € 4.620,-- (gross) in 2026.
In addition to this classic non-competition clause, other restrictions may also be agreed, such as the so-called employee protection clause (“Miarbeiterschutzklausel”): this prohibits the employee from working with employees of their former employer after termination of the employment relationship. The following decision raises the question of whether an employee protection clause can be classified as a non-competition clause and is therefore also subject to the restrictions of § 36 AngG.
2. Facts of the case
An employment relationship was terminated. The employment contract of the departing employee included a non-competition clause, a customer protection clause and an employee protection clause. The employer subsequently sued for payment of € 34.900,--, claiming that the employee had violated all post-contractual protection clauses. In the first instance, the claim was dismissed because the defendant employee's income was below the income threshold specified in § 36 Abs 2 AngG. The employee protection clause was therefore interpreted as a non-competition clause and §§ 36 f AngG were applied. In the second instance, the Higher Regional Court of Linz (OLG Linz) had to decide.
3. Findings of the OLG Linz
The OLG stated that the competition and customer protection clauses were indisputably subject to the restrictions of § 36 AngG and that the employer could therefore not invoke them. The disputed question was whether there was a claim arising from the breach of the employee protection clause.
The OLG concluded that automatic application of § 36 f AngG to employee protection clauses was in any case excluded. The decisive question was whether there would be a significant restriction on the employee's part.
The OLG derived this from the case law of the Supreme Court (OGH) and various opinions in the literature. This would mean that § 36 AngG could only be applied to the employee protection clause if there was a significant restriction on the employee's gainful employment.
The OLG Linz allowed an appeal to the Supreme Court (OGH), as further clarification was deemed necessary and appropriate. The Supreme Court will therefore decide in the final instance – we will report on the outcome!
4. Conclusion
Employee protection clauses are not automatically equivalent to competition clauses: possible restrictions may therefore not apply to them under certain circumstances!