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The lawyer answers: 10 questions about labor law

AS PART OF MY COOPERATION WITH I ANSWER USER INQUIRIES EVERY MONTH. IN MY FIRST POST, I DEAL WITH FREQUENT QUESTIONS ABOUT

LABOR LAW .

1. Can an employer write in a job advertisement that he would like only men or only women for a position?

In the vast majority of cases this is not possible because most jobs can be carried out regardless of gender. Such a preference would only be permissible if gender is really a requirement for the position (e.g. pool attendant in a women-only sauna). If there is no such reason, but the employer still excludes applicants of the opposite sex, this could be discrimination. Applicants who consider themselves to be at a disadvantage can claim damages. The company also faces an administrative fine. Job advertisements should generally be formulated in such a way that they also do not discriminate against intersex people, for example by choosing a gender-neutral formulation of the position (eg office worker instead of office clerk).

2. Can an employer ask female applicants about pregnancy during an interview?

No, this is generally an absolute taboo and would constitute gender discrimination. Asking questions about pregnancy or even asking for a pregnancy test is already prohibited during the application process. Applicants are even allowed to lie when asked about a possible pregnancy if they should know about their actual pregnancy. The employer later has no right of dismissal if he hires the applicants and the information turns out to be untrue. The request can only be permissible if there is a risk of danger for pregnant women in the desired position (e.g. if the job requires lifting very heavy loads).

3. Are employees entitled to wages if they take sick leave?

Employees may stay away from work if their health is impaired (“sick leave”). They must immediately inform the employer of their absence and also submit a medical certificate (“sick note”). During sick leave, employees are entitled to the so-called continued payment of wages from their employer. The employer must therefore continue to pay them, even if they are temporarily unable to perform their work. In the beginning, they receive full pay from their employer, but a reduced salary in the event of a prolonged illness or subsequent illness. For how long the employees receive this remuneration from the employer depends on how long they have been employed in the company.

4. What are employees allowed to do when they are on sick leave?

In short: nothing that could negatively affect a speedy healing. If the doctor prescribes strict bed rest at the time of sick leave, then this should also be observed – with the exception of necessary visits to the doctor or pharmacy. It would be bad, for example, if you stay away from work because of a herniated disc and the doctor has prescribed a back rest, but then you diligently help the neighbor to shovel his new garden pond. If the employer finds out that his employees have extended their sick leave through misconduct, he can impose sanctions up to and including dismissal. Ultimately, it always depends on the clinical picture: Even attending a rock concert while on sick leave can be permissible in individual cases if this could result in positive effects on the state of health (in the case at hand the employee suffered from burnout).

5. Do you have to work on Good Friday in Austria?

The official Austrian public holidays, on which you have no work, can be found above all in the Public Holiday Rest Act. Until recently, Good Friday was still mentioned as a holiday for members of the Evangelical Churches AB and HB, the Old Catholic Church and the Methodist Church. The European Court of Justice has ruled that a public holiday reserved for certain religions is discriminatory and contrary to EU law. Austria has now introduced the “personal holiday” instead of the Good Friday holiday. Irrespective of religion, workers can choose one day of the year that they can be sure to have off. However, you must have announced this request sufficiently in advance. The employer cannot prevent his employees from taking the personal holiday they have chosen. However, the personal holiday is a “false” holiday because the employees are deducted one day of vacation for it. So if you want to have Good Friday off, you have to put your personal holiday on this day. Otherwise there are isolated collective agreements in which Good Friday is still defined as a non-working day for certain groups.

6. Can the employer read private e-mails that employees send and receive via a work e-mail account?

It depends on whether there is a company regulation that employees may also use their professional e-mail accounts for private purposes. If there is no regulation , or if the employer has even expressly permitted private use , the employer may not inspect it without further ado. The e-mail account could also contain potentially sensitive employee data (e.g. e-mails with medical reports), which would lead to conflicts with data protection. In most cases, he would need the consent of the employees concerned in order to be able to inspect them, or he would have to try to find another legal basis.
If employees are not permitted to use their professional e-mail account for private purposes , the employer does not have to assume that the company e-mail account contains private e-mails and would have more access to them. However, reading messages from employees that are clearly private are not permitted without restrictions. The employer will have to stop reading if the subject or content of the message reveals a clearly private character, unless he can invoke a permissible basis under data protection law.

7. Are employees free to choose when to use their holiday entitlement?

Employees and employers must mutually agree when to go on vacation. Both sides must take into account the interests and needs of the other (e.g. opportunities for employees to relax). Employees in companies with a works council have another option: If they have announced their wish to take at least twelve working days’ leave at least three months in advance and no agreement can still be reached, the works council must be involved in the consultations. If these negotiations do not bring any result either, the employees can take their vacation without the employer’s consent. The employer could try to prevent this by filing a lawsuit with the labor court against the start of vacation

8. What is the difference between termination and dismissal?

Both are forms of termination of an employment relationship, primarily by the employer: In the event of termination, notice periods and dates (specified by law or a collective agreement) must be observed, so the employment contract does not end immediately. The termination does not require a reason (unless later challenged in court). A dismissal ends the employment relationship with immediate effect, but the employer needs an important reason for this. Such reasons can be serious incidents that make it unreasonable for the employer to continue to employ the employees (even only for the deadlines and dates to be observed in the event of termination). This can be, for example, the theft of goods or money by employees, but also betrayal of secrets, insults towards the employer or his family, or if a drunk driver causes an accident with the company vehicle.

9. Does deregistration from the health insurance company count as a termination?

It happens again and again that employers who want to part with their employees simply deregister them with the responsible health insurance company without informing their employees. A notice of termination can be given orally, in writing or by means of generally understandable signs and must make it unmistakably clear to the employee concerned that a notice of termination will be given. To do this, it must also be received by the workers. However, this cannot be assumed in the case of a pure deregistration with the health insurance company, especially not if the employee only finds out about the deregistration from the health insurance company and not from the employer. The employees concerned are therefore not dismissed, i.e. continue to be employed by the employer and, provided they are willing and willing to work, are still entitled to their salary. The employer will therefore still have to issue a “real” notice of termination and also correct the premature deregistration with the health insurance company.

10. Can I be fired while on sick leave?

Yes, dismissal while on sick leave is actually permissible. The employer only has to make sure that the employees, who are not in the company because of sick leave, actually receive notification of the termination. For example, he will have to send a registered letter, courier or an e-mail with a read receipt. If employees are still entitled to continued payment of wages from their employer during sick leave (for more information, see the question about wages during sick leave above), it may be necessary for the employer to continue paying wages for a few weeks even after the end of the employment relationship have to.