BYOD policies v. conducting thorough investigations

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An Upjohn Warning is a disclosure to employees of a company that legal representation is not extended to individual employees but rather covers the company only. Upjohn warnings are typically issued when an internal investigation is ongoing, or if the company is being investigated by regulators.

Sometimes called a Corporate Miranda, an Upjohn warning should be issued when an employee may disclose sensitive information to an attorney about the inner workings of a company. The attorney must inform the employee that the attorney-client privilege is not extended to individual employees, but, rather, the overseeing company. A company can choose to disclose any information shared by an employee with the investigative team or a government agency.

In recent years there has been an upward trend of Upjohn warnings, as attorneys have face ethical issues pertaining to sharing privileged information. This has occurred for several reasons but has been seen most commonly in the financial sector as government agencies investigate claims.  As external and internal investigations rise, the need for Upjohn Warnings also rise. They are intended to protect employees, the company that has hired counsel, and the legal counsel, as well.

Upjohn Warnings became commonplace after a 1981 supreme court case featuring Upjohn Co. The case fell short of requiring warnings to employees about attorney-client privilege, but it was strongly suggested that legal counsel representing a company’s interest disclose the information to non-management employees. 

Quality workplace investigations should include a variation of an Upjohn Warning.  Not all workplace investigators are attorneys but everyone conducting workplace investigations should provide a version of the Upjohn warnings before starting each interview.

Cite this article: Lynch, N. (2017). BYOD Policies V. Conducting Thorough Investigations. Available: https://www.lynchlf.com/blog/byod-policies-v-conducting-thorough-investigations/


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