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February 22, 2024 Employment Law

What to Know Before You Speak to the Company Attorney

It’s a situation most employees dread. An incident occurs at work — perhaps an allegation of sexual harassment or a coworker decides to come forward as a whistleblower — and your manager asks you to sit for an interview with a company attorney as part of an internal investigation. Even if you were not directly involved with the underlying incident(s), being asked to speak to a company attorney is nerve-racking for any employee. It is therefore critical for all employees to be familiar with Upjohn warnings, which a Norfolk employment lawyer explains in more detail herein. 

What Are Upjohn Warnings? 

The most important thing to know about the attorneys involved in workplace investigations is that the attorney represents the company — not its employees. Thus, while attorney-client privilege applies to any communications between the company attorney and employees, the company controls that privilege and can waive it at its discretion. Upjohn warnings, also known as “corporate Miranda warnings,” are warnings that corporate counsel must give to their interviewees alerting them to the fact that they represent the company rather than the employee. They take their name from the 1981 Supreme Court case Upjohn Co. v. United States, in which the Court held that, when an attorney is hired to represent a company, the attorney-client privilege applies to communications with all employees of the company. However, the company rather than the employee holds the privilege and may disclose employee statements to third parties, including government entities. 

The Elements of an Upjohn Warning 

There are no “magic words” that an Upjohn warning must contain to be considered valid. As such, they vary from attorney to attorney and employer to employer. However, most Upjohn warnings at least contain some variation of the following statements: 

  • Counsel represents the company in the matter under investigation
  • Counsel does not represent the employee 
  • The interview is protected by attorney-client and should not be disclosed to third parties
  • That privilege belongs to the company, not the employee
  • The company may choose to waive the privilege at any time and reveal what the interviewee said to third parties 

In some cases, the attorney may ask the interviewee to sign a written statement attesting that the Upjohn warning was given and that they understood it. 

Why Employees Need to Understand Upjohn Warnings 

Because the attorney-client privilege in workplace investigations conducted by attorneys is held by the company, employees cannot prevent their employers from disclosing their statements to third parties, including government entities investigating alleged corporate wrongdoing. This distinction becomes relevant when the employee’s interests and the employer’s interests do not necessarily align. Employees should therefore assume that their statements to the investigating attorney will at least make their way back to their employer, including its corporate executives

Conduct Effective Workplace Investigations With Help From a Norfolk Employment Lawyer 

For more information about workplace investigations, including what to include in an Upjohn warning, please contact a Norfolk employment lawyer at Pierce / Jewett by calling 757-624-9323 or using our online contact form.