Non-compete clause - Workers should be aware of this
Many employees are dependent on a part-time job. Yes, be careful! Not every after-work activity can be reconciled with the main occupation. The non-compete clause prohibits employees from doing their secondary employment in a competitiveCompany exercise.
The reason: The competitor could get internal information about customers, know-how, prices and much more through the part-time jobber and use this to his advantage. The non-compete clause is intended to prevent this risk.
What is a non-compete clause?
It is therefore advisable to speak to the employer before taking up a secondary job. This also applies if the part-time job is carried out in another industry. In most cases, the boss will have no objection to this. But he can also refuse to give his consent, namely if he has to fear that the employee will not find enough relaxation from the part-time job and that his actual work will suffer as a result.
This is why there is a non-competition clause: This is a provision in the Commercial Code that prohibits certain types of secondary employment. Many training and employment contracts contain a corresponding clause. This is quite common and no reason not to sign the contract. With such an agreement, the employer protects himself from an employee working for a competing company.
Non-compete at a glance - 4 rules you should know:
In addition to the non-competition clause during the employment relationship, a non-competition clause for a certain period of time after the termination of the employment relationship can be agreed in order to make a direct contribution job change to prevent competition. Therefore, a distinction is made between a statutory non-competition clause and a post-contractual non-competition clause. Employees should be familiar with these regulations:
1. Statutory non-competition clause
The statutory non-competition clause applies as law during the existence of a contractual employment relationship. Employees have to behave loyally and loyally to their employer and are not allowed to compete with them without their consent.
Working for a company that is in direct competition is prohibited. In the event of a violation, the employee is liable for damages and may be terminated under certain circumstances.
2. Post-contractual non-competition clause
The non-compete clause usually expires after the end of an employment relationship. However, it can be agreed in the employment contract that the restriction continues after the end of the activity. This is permissible for a period of up to two years. The legal bases for this are § 110 Trade Regulations and § 74 and § 75 Commercial Code. Further information on the post-contractual non-competition clause can be found on, for example rightmart.de.
Anyone who leaves a company should also know that a post-contractual non-competition clause does not only apply to work for the competition. It can also be agreed that the ex-employee is not allowed to be active in the same area of activity as the employer or that customers are poached from him. The prerequisite for such restrictions is that the employer can prove a legitimate business interest and pays the ex-employee a financial consideration, the so-called waiting allowance. This must be at least half as high as the last salary of the departed.
3. Basic right to freedom of occupation
The freedom to pursue a profession is allowed through the post-contractual Non-competition clause are not restricted in such a way that it practically amounts to a professional ban for the ex-employee. It is different with the statutory non-competition clause.
This always comes into conflict with the right to free career choice when an activity is in direct competition with the employer. Such activities are excluded from the free choice of occupation. An electrician is allowed to wait after work, but not work for another electrical company or found one.
4. Consequences of a violation of the non-competition clause
In the event of a violation of the non-compete clause, certain consequences can be expected. What do they look like?
- If an employee violates the non-competition clause, he is obliged to pay compensation to the employer for the lost profit. In addition, the employer can claim the profit from the secondary activity provided for direct competition.
- If company secrets have also been disclosed, the employer can also demand compensation in the amount of a license fee that is likely to be achieved. Furthermore, he can sue for an omission if he has to fear that the employee will take up competitive business again in the future (risk of repetition).
- In addition, a breach of a contractual non-competition clause can be a reason for an ordinary termination. This must be preceded by a warning of the anti-competitive behavior. Likewise, a competition violation can justify an extraordinary termination according to § 626 BGB.
- In addition, the employer can refuse an ex-employee the parental leave allowance if he worked for a company of direct competition during the period of the post-contractual non-competition clause.
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