Investigations in the workplace are pretty common and can be a useful tool in negotiations. As an employee of the company, there are a number of considerations which should be at the forefront before the investigation begins. For example, an employee should be mindful of the Upjohn warning and know when to have an attorney present for his or her interview. This blog further explores the contours on information an employee should be aware of before participating in a workplace investigation. 

Workplace investigations have become a routine part of modern organizational life. Companies investigate everything from harassment complaints and safety violations to financial misconduct and conflicts of interest. While these inquiries are meant to uncover facts and protect both the business and its employees, they can also feel intimidating—especially when a corporate investigator sits down to interview you. One of the most important moments in that interview is the Upjohn warning, a legal disclosure many employees have heard of but may not fully understand.

What Is an Upjohn Warning?

An Upjohn warning—sometimes called a “corporate Miranda”—is a statement an investigator gives to clarify who the investigator represents. It stems from a 1981 Supreme Court case, Upjohn Co. v. United States, which affirmed that conversations between company lawyers and employees are protected by attorney-client privilege—but the privilege belongs to the company, not the employee. 

Because employees sometimes assume the company’s lawyer is their lawyer, investigators must clarify:

• The investigator represents the company, not you.
• The purpose of the interview is to gather information for the company’s legal needs.
• The company controls the confidentiality of the conversation and may choose to disclose information to third parties.
• You are expected to provide truthful information.

This warning ensures employees are not misled and helps maintain the integrity of the investigation.

What Does the Upjohn Warning Mean for Employees?

Hearing that the company’s attorney does not represent you can be unsettling. But understanding the implications helps you approach the conversation responsibly and with appropriate caution.

The warning means:

• Your statements go to the company, and the company may choose to share them—even if it is not in your personal interest.
• You still must be truthful. Lying or intentionally withholding information can lead to disciplinary action.
• You have the right to seek your own legal counsel, and investigators should not discourage you from doing so.

Should an Employee Have an Attorney Present?

Whether you should have a personal attorney depends on the circumstances.

You may want to consult or bring an attorney if:

• You believe you may be implicated in wrongdoing.
• The investigation involves harassment, discrimination, retaliation, or other legally protected issues.
• Law enforcement or regulatory agencies may be involved.
• You feel uncomfortable or believe your job may be at risk.

An attorney can help you understand your rights, guide your responses, and ensure you are treated fairly.

However, many employees choose to participate without an attorney during routine fact-finding investigations, especially when they are witnesses rather than subjects. Some companies may not allow a personal attorney to attend the interview but will often allow you to speak to your lawyer before or after the meeting.

In sum, workplace investigations are serious, but they aren’t inherently adversarial. Understanding the Upjohn warning empowers employees to participate responsibly and protects both personal and organizational interests. For more information about this warning, click here. If you are ever unsure about your role in an investigation or how your statements may be used, consulting a Texas employment law attorney can provide clarity and peace of mind. Contact me in Houston or Austin today.