Legality of providing freelance support for a product which my current employer previously supported

Question

I currently provide technical support for a very niche product sold by a relatively big-name company (at least within this particular industry).

However, they are planning on ending support in a few years, and there will be dozens of clients (each themselves a company) who still use this product because changing to something else will either be prohibitively expensive, or just not technically feasible.

My question is this: would it be legal for me to provide support, documentation, and software (all written 100% by me, with nothing copyrighted by my employer) to these former clients at a small fee, as long as I do it "off the clock" with my current employer (the same employer who originally provided support for the product)?

The customers are aware of the end of official support, so it would be clear to them that I am offering my services on the side, and not as a representative of my employer.

My chief concerns are whether this would get me fired if my employer found out, and whether I could face legal action. I signed a non-compete agreement when I was hired, but I don't know if this counts as competition if I'm providing a service which the company explicitly no longer provides.

I understand it might be difficult to give accurate advice without knowing more about the product/employer, but I'm not comfortable naming anything here. I appreciate any advice that can be offered in spite of that.

Update 1: For clarification, my current employer is the large company which created and previously supported the product. They are discontinuing support because the product is about a decade old, and no longer has enough clients with enough problems for the project to remain profitable.

Answer 1

It would likely depend on your current contract of employment. Your contract (assuming you have one) may restrict the amount of work you do outside your main employment, for example.

If your employer is abandoning a product, the non-compete clause may not apply as they are no longer in that particular business.

As Canadian Luke says in the comments, you should really discuss this openly with your employer. As you will be dealing with existing clients of your current employer, it's not something you can really expect to do without your current employer finding out.

It may be in both your interests for you to continue supporting these clients. For example, your employer may not want to upset existing clients and it may be financially beneficial for you to keep supporting them. If this can be done without interfering with your main job, then it could be a win-win.

I recommend creating a list of possible concerns your employer might have and coming up with some reasonable solutions to these before you initiate a discussion. For example, your employer might not want you to accept calls or read emails for this outside work during your normal working hours. A solution for this particular concern might be for you to have a different phone and email address for the outside work and that you only answer these outside of your main working hours.

You will need to be realistic about how many hours this outside work will take and whether it can reasonably coexist with your main job. If the outside work is more than 10 or 20 hours a week one option might be to re-negotiate your main job to a permanent part time job (e.g. 30 hours a week) instead of a full time job assuming the outside work is financially worthwhile.