Non-Compete Clauses for Music Teachers – What You Need to Know
In Switzerland, many music teachers work freelance or part-time at public or private music schools. Besides their employment, they often want to teach privately. This raises the question of how non-compete clauses affect their freedom to engage in secondary employment. This article examines the topic based on Swiss contract law (OR) and answers important questions about non-compete clauses for music teachers.
All information in this blog article is provided without guarantee. In case of dispute or doubt, we recommend seeking advice from a qualified lawyer.
1. What is a Non-Compete Clause?
A non-compete clause is a legal agreement that prohibits an employee from competing with their employer either after the end of the employment relationship or, in some cases, during it. The purpose of such a clause is to protect the employer’s economic interests.
According to Art. 340 ff. OR, a post-contractual non-compete clause (i.e., a clause that applies after the end of the employment relationship for a certain period) is only legally binding if the employee has access to customer data, manufacturing, or business secrets, granting them access to sensitive information that could harm the employer's competitive position. Even if this is the case, a post-contractual non-compete clause is only valid and permissible under the further requirements specified in Art. 340 ff. OR and for a limited period. In general, a non-compete clause aims to protect the employer from financial harm that an employee could cause through competing activities.
2. When Is It Applied?
Based on the employee’s duty of care and loyalty, a statutory non-compete clause applies during the employment relationship (Art. 321a Para. 3 OR). This applies primarily to full-time employment but does not necessarily apply to part-time work — at least not unrestrictedly.
A post-contractual non-compete clause is often used in industries where there is a risk that the employee could use acquired knowledge and connections to compete with the former employer. In the music and teaching industry, this is less common. However, private and public music schools may include non-compete clauses in employment contracts to protect their interests, especially regarding the recruitment of students. A prerequisite for the validity of a post-contractual non-compete clause is, in any case, that there is a potential for harm. The employer can only prohibit actions by the employee that could harm the employer.
3. Can My Music School Prohibit Me from Teaching Privately?
Whether your music school can prohibit you from teaching privately depends on your employment contract. If private teaching is not explicitly prohibited in a part-time employment contract, it is generally allowed to engage in multiple jobs as long as it does not negatively affect the main employer. A specific non-compete clause would need to be agreed upon in the employment contract.
As long as a music teacher does not recruit students from the music school and fulfills their duty to teach the assigned students as per the agreed hours, it is generally permissible to teach privately as a self-employed person or at another music school, unless the contract states otherwise. However, it is possible to agree that even a part-time employee cannot teach music privately or at another music school simultaneously. In practice, however, employers may find it challenging to enforce such non-compete clauses for low-percentage contracts, as music teachers are likely to resist and be unwilling to sign contracts with such clauses. From the perspective of music teachers, it is therefore essential, especially for part-time positions, not to accept contractual non-compete clauses.
The permissibility of a post-contractual non-compete clause depends – in addition to the other requirements according to Art. 340 ff. OR – on whether there is a possibility of harm due to specialized knowledge acquired from the employer. Courts generally do not uphold a post-contractual non-compete clause if clients follow the employee due to their personal qualities and abilities rather than knowledge acquired from the employer. The reasoning is that there is no causal connection between the acquired specialized knowledge and the potential harm. Although the Federal Court has clarified that no profession is categorically exempt from non-compete clauses, the validity of a post-contractual non-compete clause for music teachers is generally questionable. In one case, a Geneva court ruled that a non-compete clause for a piano teacher was invalid in that specific case.
4. What Are the Possible Consequences?
A post-contractual non-compete clause in the employment contract is unlikely to be binding for music teachers. This does not affect the validity of the rest of the employment contract, however. In other words, the employment contract remains valid in its entirety. If you violate a valid non-compete clause during the employment relationship, thereby breaching your duty of loyalty, this could lead to termination of the employment contract. Additionally, you could face claims for damages.
5. Can My Employer Terminate Me for Teaching Outside My Contracted Hours?
Your employer cannot terminate you solely for additional activities outside of your contracted hours, provided there is no breach of loyalty or valid non-compete clause. However, if it appears that your secondary employment is causing you to neglect your duties at the music school, this could have consequences.
6. I Work 15% at a Music School. Can I Supplement My Income with Private Lessons?
Yes, generally, you can supplement your income with private lessons, unless expressly forbidden in the employment contract. However, as mentioned in points 2 and 3, you must not compete with your employer or breach the duty of loyalty. It is always advisable to communicate such activities openly with the employer to avoid misunderstandings.
7. Can I Use the Music School’s Facilities for Private Lessons?
Without explicit permission, you may not use the music school’s facilities for private lessons. This could be considered a misuse of company resources and may have legal consequences. If you are interested in using the facilities outside your employment, you should clarify this with the school administration and obtain explicit permission, ideally in a verifiable form.
For public music schools, this is particularly problematic because teaching facilities, as well as subsidized music lessons for children and youth, are funded by public resources. Therefore, it must be explicitly stipulated in the contract how and under what conditions the teaching facilities can be used for privately organized music lessons and how they are billed. Additionally, liability for the facilities needs to be regulated.
8. Can I Teach in Another Canton or City?
Whether you can teach in another canton or city depends on your employment contract. A non-compete clause could impose geographic restrictions, although limitations on other cantons or cities are generally only valid to a limited extent. If no prohibition exists, part-time employees are generally free to teach in different locations, subject to the above conditions.
A post-contractual non-compete clause would only be valid if it is appropriately limited in time, location, and scope (regarding the validity of such clauses for music teachers, see point 3).
9. Do I Need My Employer’s Permission?
Generally, no (unless explicitly required in the employment contract). While there is no legal obligation to inform your employer about side jobs, it is recommended for transparency reasons, ideally before signing a new employment contract. Especially for activities in a similar field, open communication can prevent misunderstandings and potential conflicts.
10. Am I Insured if I Teach Privately and Am Employed by a Music School?
If you are self-employed in addition to your employment, you need to handle insurance for the self-employment yourself. As an employee, you are usually insured by the employer only for activities related to the music school.
The following insurance should be considered:
Accident Insurance (UVG)
Old-Age and Survivors Insurance (AHV)
Disability Insurance (IV) and Earnings Compensation (EO)
Pension Fund (BVG)
Daily Sickness Allowance Insurance
Liability Insurance
11. I Am Employed at a Private Music School with a On-Call Contract and No Guaranteed Hours. What About a Non-Compete Clause?
With an on-call contract, there is generally no guaranteed workload, making it difficult to enforce a non-compete clause. For a post-contractual non-compete clause (although, as noted, its validity for music teachers is questionable), it is often not even met under an on-call contract, as the employee does not usually have access to information or networks that could significantly affect the school’s business.
12. My Employment Contract Mentions Nothing About a Non-Compete Clause. What Does This Mean for Me?
If there is no mention of a non-compete clause in your employment contract and you are not working full-time, none applies. This means you are generally free to teach privately or at other institutions, as long as you do not breach the general duty of loyalty and your main work at the music school is not affected.
13. Am I Bound by a Post-Contractual Non-Compete Clause if My Employer Dismisses Me?
No, if the employer dismisses you without you giving them a reason to do so, the post-contractual non-compete clause ceases. According to Art. 340c Para. 2 OR, the clause is void if the employer terminates the employment without justified cause. The same applies if you resign for a justified reason attributable to the employer.
Therefore, a validly agreed post-contractual non-compete clause would only remain in effect if the employer dismisses you for justifiable reasons or if you resign voluntarily without the employer being responsible.
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