Upjohn Warnings in Internal Investigations: What HR Needs to Know

Outside counsel has just told you she will sit in on tomorrow's interviews and "give the Upjohn warning" before each one. Or your general counsel has asked you to gather facts for him and to tell witnesses the conversation is privileged. Either way, you need to know what an Upjohn warning is, what it does to your investigation, and what it does not do.

The short version: the warning tells an employee that the lawyer in the room represents the company, not the employee, and that the company controls whether the conversation stays confidential. Whether your investigation is privileged at all is a separate question, and it is one for counsel to decide.

Where the Upjohn Warning Comes From

In Upjohn Co. v. United States, 449 U.S. 383 (1981), the company's general counsel investigated possible improper payments by sending questionnaires to managers and interviewing employees. The IRS demanded the questionnaires and interview notes. The Supreme Court held they were protected.

Three parts of the decision matter to HR:

1. The privilege can cover communications with employees at any level. The Court rejected the "control group" test, which had limited the privilege to senior decision-makers, because lower-level employees often hold the information counsel needs to advise the company.
2. The Court relied on specific facts. The communications were made by employees to counsel at the direction of corporate superiors, to secure legal advice for the company. They concerned matters within the employees' duties. The employees knew they were being questioned so the company could obtain legal advice. The communications were treated as confidential.
3. The privilege protects communications, not facts. The government remained free to question the same employees about what happened. Only what they told the company's lawyer was shielded.

The Court also held that the lawyer's notes and memoranda of witness interviews are work product and can be obtained only on a far stronger showing of necessity than ordinary materials.

The privilege recognized in Upjohn belongs to the company. The employee who gave the information does not own it and cannot stop the company from disclosing it. That gap between what an employee may assume and what the law provides is the reason the warning exists.

What an Upjohn Warning Says

There is no official text. A typical warning, delivered by a lawyer at the start of an interview, covers four points:

• The lawyer represents the company, not the employee personally.
• The interview is being conducted to gather facts so the lawyer can give legal advice to the company.
• The conversation is privileged, but the privilege belongs to the company. The company alone can decide to waive it and disclose what was said to third parties, including government agencies.
• The employee should keep the conversation confidential.

Sample wording (example only)

"Before we start, I need to explain my role. I am a lawyer for the company. I represent the company, not you personally. I'm talking with you to gather facts so I can give the company legal advice. This conversation is protected by the attorney-client privilege, but that privilege belongs to the company, not to you. The company can decide to share what you tell me with others, including government agencies, without asking your permission. To protect the privilege, please keep our conversation confidential. Do you have any questions before we begin?"

Your counsel will have preferred language, and you should use it rather than this example. Whoever gives the warning should record that it was given, when, and who was present.

Why the Warning Matters

Without a clear warning, an employee may later claim he reasonably believed the company's lawyer was also his lawyer. If a court agrees, the employee may be able to assert his own privilege over what he said, which can block the company from using or disclosing the interview, including to a regulator. A vague or missing warning can also create a conflict problem for the lawyer.

There is a cost. Hearing "I'm not your lawyer and the company can hand this to the government" makes some witnesses guarded. That trade-off is one reason counsel, not HR, decides when a matter warrants a lawyer-led interview.

Is an HR-Led Investigation Privileged?

Often it is not, and HR should not assume otherwise.

The attorney-client privilege protects confidential communications made for the purpose of obtaining or giving legal advice. An HR professional who receives a harassment complaint, interviews witnesses under the company's complaint policy, and writes a report for a business decision-maker is usually carrying out a business function. Copying a lawyer on the report or stamping it "privileged and confidential" does not change that.

An investigation is more likely to be protected when counsel has directed it in order to give legal advice, and the record shows it. The factors the Supreme Court pointed to in Upjohn are a useful checklist:

Even a carefully structured, counsel-directed investigation protects only communications and the lawyer's work product. The underlying facts, the emails, the badge records, the complaint itself, and the witnesses' own knowledge remain discoverable.

The defense that can undo the privilege

In harassment cases, employers commonly defend themselves by showing that they exercised reasonable care to prevent and promptly correct the behavior, the defense recognized in Faragher v. City of Boca Raton (1998). The employer's investigation is the main evidence of that reasonable care.

Courts have often held that a party cannot use an investigation as a defense and also withhold it as privileged. The practical lesson is that the two goals pull in opposite directions. An investigation you plan to show a jury should be written to be read, by an investigator who can testify. An investigation you want to keep privileged may not be available as proof that you acted reasonably.

That is why counsel decides. Before interviews begin on any matter with litigation potential, ask counsel which model applies:

1. HR-led, not privileged. HR investigates and reports to management. Assume every note and the final report may be produced. Counsel advises separately, and those lawyer-client communications remain privileged.
2. Counsel-directed. Counsel leads or directs the fact-finding for the purpose of legal advice, gives Upjohn warnings, and controls distribution.
3. Two tracks. HR completes a factual investigation that the company expects to disclose, and counsel separately gives privileged legal advice about it. Keeping the tracks separate takes discipline.

What HR Should and Should Not Do

• Do not give an Upjohn warning on your own. A non-lawyer telling a witness "this is privileged" may be wrong and may mislead the witness. If counsel wants you to deliver one as counsel's agent, get the wording and instructions in writing.
• Do explain your role in every interview. A plain non-lawyer introduction works: you are investigating on behalf of the company, you are not the employee's advocate or advisor, the information will be shared with those who need to know, and retaliation is prohibited. Our article on workplace investigation interviews covers the opening in more detail.
• Do not promise absolute confidentiality. You cannot deliver it. Say the matter will be kept confidential to the extent possible.
• Do ask counsel before requiring confidentiality from witnesses. Under the NLRB's Stericycle decision (2023), work rules are judged case by case for their tendency to chill protected activity, and broad instructions not to discuss an investigation can be challenged.
• Do write as if the file will be read aloud. Stick to facts and reasoning. Leave legal conclusions ("this was unlawful harassment") to counsel. The investigation report template and worked sample shows how to phrase findings as policy conclusions.
• Do keep legal advice out of the investigation file. Store emails with counsel separately so privileged advice is not produced along with the file. See evidence collection and storage in investigations.

How Upjohn Differs From Weingarten and Miranda

The Upjohn warning is sometimes called a "corporate Miranda." The nickname misleads. Miranda warnings apply to custodial questioning by police. An Upjohn warning protects the company's privilege and clarifies the lawyer's role; it gives the employee no right to remain silent at work. Private employers can generally require employees to cooperate with an investigation.

Weingarten rights are different again. They give union-represented employees a right to a representative on request. An interview can involve both: a company lawyer giving an Upjohn warning to an employee who has a steward present.

If the facts suggest a crime, the analysis changes, and counsel should be involved before anyone is interviewed. See when to involve law enforcement in a workplace investigation.

When to Call Counsel First

Raise the privilege question with counsel before the first interview when:

• The accused is an executive, an owner, or someone in HR or legal
• The complaint alleges conduct that could be criminal or involves a regulator
• An attorney demand letter, agency charge, or lawsuit has arrived or is likely (see how employers should respond to an EEOC charge)
• The complaint alleges a pattern affecting many employees
• The complainant or the accused has a lawyer

For routine matters, most employers run an HR-led investigation under the first model and accept that the file is not privileged. The steps are set out in the HR investigation process, step by step, and the wider set of resources is in our Workplace Investigations Guide.

Knowing how to run an investigation that stands up when disclosed is the skill HR controls. The Internal Investigations Certificate Program teaches a step-by-step process through documentation, findings, and report writing, and its learning objectives include supporting legal counsel during litigation.

---

Frequently Asked Questions

What is an Upjohn warning?

It is a notice a company's lawyer gives an employee before an investigation interview. It explains that the lawyer represents the company and not the employee, that the conversation is privileged, and that the privilege belongs to the company, which may choose to waive it and disclose what was said.

Does HR need to give an Upjohn warning?

Generally no. The warning concerns the attorney-client relationship, so it is given by a lawyer or by someone acting at a lawyer's direction. HR investigators should explain their own role and the limits of confidentiality instead, and should follow counsel's instructions if asked to deliver the warning.

Is an HR investigation protected by attorney-client privilege?

Usually not, when HR conducts it as a business function under company policy. An investigation directed by counsel to provide legal advice may be privileged. The label on the document does not decide the question; the purpose and structure do. Counsel should make the decision at the start.

Can an employee refuse to answer after an Upjohn warning?

The warning does not create a right to refuse. Private employers can generally require cooperation with a workplace investigation and may discipline a refusal, subject to any contract, collective bargaining agreement, or public-sector rule. Get counsel's advice before disciplining someone for refusing.

Does the privilege protect the facts uncovered in the investigation?

No. The Supreme Court made clear in Upjohn that the privilege covers communications with counsel, not the underlying facts. Witnesses can still be questioned about what happened, and pre-existing documents remain discoverable.

Can the company share a privileged interview with the government?

Yes. The privilege belongs to the company, so the company can waive it. That possibility is exactly what the warning tells the employee.

---

The Bottom Line

An Upjohn warning answers one question for the witness: whose lawyer is this? The harder question for the employer is whether the investigation should be privileged at all, since a privileged investigation may not be usable as proof of a prompt and reasonable response. That call belongs to counsel and should be made before the first interview, not after the report is written.

This article is general education, not legal advice. To strengthen the part of the work HR owns, see the Internal Investigations Certificate Program, check definitions in the Glossary of Workplace Investigation Terms, or read the Workplace Investigation FAQs.