You have resigned or been dismissed, the notice period is running, and the new offer is on the table — can you start already? The answer depends on two things most employees never check: whether you are still actively working or on garden leave, and the exact wording of your release. During garden leave a new job is generally allowed — but unless your release waives the offset under § 615 sentence 2 BGB, your old employer may credit every euro you earn against the salary it still owes you. One sentence in the Freistellung decides whether the overlap months pay you once or twice.
Scenario 1: still working through the notice period
Until the last day of the employment, you remain bound by your duties — including the statutory non-compete during employment. Rooted in § 60 HGB for commercial employees and extended to all employees via the duty of loyalty (§ 241(2) BGB), it means: no work for a competitor, no competing business of your own, no soliciting your employer’s customers — even in your free time, even unpaid. Violations justify dismissal, sometimes without notice, and damages claims. This applies with full force during the notice period; „I’m leaving anyway” is not a defence.
What you may do while still employed:
- Prepare the move: interviewing, negotiating and signing the new contract are lawful preparation, not competition — even with a direct competitor.
- Non-competing side work: generally permitted. Many contracts require notification or consent for secondary employment; such clauses are enforceable only insofar as the employer has a legitimate interest, but comply with the notification to avoid friction. Working-time limits (ArbZG) and your full performance for the current employer must be respected.
What you may not do: start productively working for the competitor before your end date, take customer lists or data „for later”, or recruit colleagues while still on payroll.
Scenario 2: garden leave (Freistellung)
On garden leave you are released from the duty to work but the employment — and the salary — continues to the end date. Three questions decide what you can do with that time.
May you take a new job at all?
With an irrevocable release, the prevailing view is that you may take up new (non-competing) employment during garden leave unless the release expressly prohibits it — the employer has given up its claim to your work. With a merely revocable release you must stay available for recall, which practically blocks a new full-time job. Whether you may join a competitor during garden leave is more delicate: the statutory non-compete formally runs until the end date, though case law softens this where the employer declared an unconditional irrevocable release. Do not resolve that question by guesswork — it is a standard point we clear in one letter to the employer.
The § 615 sentence 2 offset: the expensive fine print
By default, whatever you earn elsewhere during the paid release is credited against the salary your old employer owes you (§ 615 sentence 2 BGB, mirrored in § 74c HGB for post-contractual non-competes). Earn €6,000 at the new job in an overlap month and the old employer pays you €6,000 less — you worked for free, economically speaking.
That is why the wording matters. The employee-friendly gold standard reads:
„Der Arbeitnehmer wird unwiderruflich unter Fortzahlung der Vergütung und unter Verzicht auf die Anrechnung anderweitigen Erwerbs von der Pflicht zur Arbeitsleistung freigestellt.” — irrevocable release, continued pay, waiver of the offset.
If your termination agreement or release letter is silent on Anrechnung, assume the offset applies. In settlement negotiations, the waiver is a standard ask — employers grant it far more readily than an equivalent amount of severance, because it costs them nothing unless you actually find work quickly.
Vacation interplay
Employers routinely release employees „under crediting of outstanding vacation” — your remaining vacation days are deemed taken during the leave. That crediting only works if the release is irrevocable and clearly designates the vacation. A sloppy revocable release does not extinguish vacation, which then must be paid out on top at the end — a recurring five-figure surprise in our files, pleasant for the employee.
Overlapping start dates: when the new job cannot wait
If the new employer wants you before your notice period ends, you cannot simply shorten the period unilaterally — walking out early is a breach of contract, and many contracts attach a Vertragsstrafe (contractual penalty), typically up to one month’s gross salary, for Vertragsbruch. Realistic options, in order of preference:
- Termination agreement (Aufhebungsvertrag) moving the end date forward — most employers agree once you have resigned anyway; watch the Sperrzeit implications if you would need ALG in between (usually irrelevant when you move straight into the new job).
- Garden leave with offset waiver — the elegant solution: the old employer releases you, you start the new job, both salaries run (see above).
- Negotiated start-date shift with the new employer — a start pushed by 4–6 weeks rarely kills an offer; a lawsuit from your old employer can sour a career.
Check also that the two contracts do not collide on paper: overlapping full-time employments with conflicting exclusivity clauses can put you in breach of both. See notice periods in Germany for calculating your earliest clean exit, and non-compete clauses if your contract contains a post-contractual restriction — that is a separate regime with its own compensation rules.
Worked example
A key account manager in Hamburg, €6,000 gross monthly, is dismissed for operational reasons with a four-month notice period to 31 October. In the settlement negotiated after his Kündigungsschutzklage, he is irrevocably released from 1 July. He receives a job offer from a non-competing company at €6,500 gross starting 1 September — two months inside his notice period.
- Variant A — release silent on offset: for September and October, his old employer credits the new salary: instead of €6,000 + €6,500 he receives €0 from the old employer (credit exceeds salary) plus €6,500 new salary. Overlap value: €13,000.
- Variant B — offset waived in the settlement: both salaries run in parallel: (€6,000 + €6,500) × 2 = €25,000 for the same two months — €12,000 more for one negotiated sentence.
- Vacation: the settlement credits his 11 remaining vacation days against the release period — properly, because the release is irrevocable. No payout, but also no dispute.
- Because the waiver was agreed, he accepts the 1 September start confidently; the new employer never needed to know the details of his old package.
Frequently asked questions
Do I have to tell my old employer about the new job?
If the offset applies, yes — you must disclose interim earnings on request, and dishonesty can cost you the remaining salary and more. If the offset was waived, there is generally no duty to report a non-competing job taken during an irrevocable release. Competing activity is a different matter — take advice first.
Can I start at a competitor the day after my employment ends?
Yes — unless you signed a post-contractual non-compete (nachvertragliches Wettbewerbsverbot). Without one, the statutory non-compete ends with the employment, full stop. With one, check it immediately: it is only binding if the employer promised compensation of at least 50% of your total remuneration (Karenzentschädigung), and many clauses fail. See our non-compete guide.
My employer released me revocably. Can I still take the new job?
Risky — you must remain available for recall, and starting elsewhere may breach that duty. The practical fix: ask the employer to convert the release to irrevocable (they usually agree; recall almost never happens) or to consent in writing to the specific new employment. Do not start on a revocable release without one of the two.
Does the new job affect my unemployment benefits?
If you move seamlessly from the old employment into the new one, ALG I never comes into play. If there is a gap, remember to register as job-seeking within three days of learning your end date and see how interim earnings interact with benefits — errors here create repayment demands.
What happens if I just stop showing up before my end date?
Breach of contract: the employer can claim damages, enforce a contractual penalty (commonly up to one gross monthly salary), and may grade your reference accordingly. It can also refuse to release documents informally requested. The clean routes above almost always cost less than the mess.