How to Handle Upjohn Warnings

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3 Responses

  1. Jon May says:

    I believe that a better and more effective approach might be to simply have each employee sign the following statement:


    I have been informed that Mr. ____ is an attorney for my employer XYZ Inc. _____(initial).
    I understand that Mr. ____ is not my attorney. _____(initial).
    I understand that this means that Mr. _____ is not here to assist me as my lawyer. _____(initial)
    I understand that Mr. _____ will be asking me questions about XYZ, its operations, and the actions of various persons. ____(initial).
    I understand that Mr. ______’s assistant will be taking notes of this interview._____(initial).
    I understand that at some point in the future, my answers to these questions will be disclosed to others in the company and that the company could, at its sole discretion, and without any notice to me, disclose my answers to outside regulatory or law enforcement agencies. _____(initial).
    I understand that I do not have to answer any questions but that if I refuse to answer questions, my position with XYZ could be jeopardized and I could be fired.___________(initials).

    The only people that will refuse to sign are those directly involved in wrongdoing and this will enable you to identify them as well.

  2. Realistic says:

    I would have to disagree, introducing such a form invites the high probability of employees seeking their own counsel prior to executing such a one-sided detrimental document that, on the face of it looks harmless although upon legal analysis could be damaging for both sides. The second line in particular introduces the concept of employees engaging their own counsel, great if you are looking at expanding your practice in this area, more investigations, more employees interviewed, more money. The major problem with investigating counsel is that they have never sat on the other side in such circumstances and have no idea what is going through the “victims” mind. The last 2 statements are horrendous, the employee agrees that those who they are reporting will have knowledge of the information disclosed and the wrongdoers, more than likely management or the board can fire me and i agree that they can fire me. Needless to say, the challenge to such a declaration at a later stage in relation to execution under duress and threat and the application of local employment laws as well as the potential for employees to hold bak vital information due to the extreme nature of the statements contained within the proposed “agreement” to be fired. I welcome the introduction of such a signed declaration as it will definitely provide a boost to certain areas of practice.

  1. November 18, 2011

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