Interviewing the Accused: Upjohn Warnings, Fair Process, and the Statements That Decide Cases
What Employers Need to Know
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Timing, framing, and fairness
Interview the accused after you understand the facts, evidence, and testimony. The interview of the accused relies on specificity. The accused should face the actual allegations with enough particularity to respond meaningfully. Vague accusations produce vague denials, and vague denials help no one, including the accused. But late in the process does not mean ambush or trial. The tone that serves the employer is professional, specific, and genuinely open to the answers; investigators who interview to confirm rather than to learn produce files that read exactly that way. Remember what this interview is for. If the allegations are true, a fair, well-documented interview locks in the accused’s account before explanations can evolve. If they are not true, this interview is where the investigator must show their work. Both outcomes require the same handling by the investigator.
Upjohn, representation, and cooperation
When a lawyer conducts the interview as legal counsel, the Upjohn instruction must be given and documented: I represent the company, not you; this conversation is privileged, but the privilege belongs to the company, which may choose to waive it and disclose what you tell me. Skip this, and the accused may later claim a personal attorney-client relationship. Requests to bring a personal attorney to an internal interview are generally at the employer’s discretion to decline in the private, non-union workplace, but rigid refusals deserve a moment’s thought especially when criminal exposure lurks. In unionized settings, Weingarten applies with full force. Employees can be required to participate truthfully in workplace investigations. Refusal to do so is insubordination with consequences. If there is a refusal, document it, the warning given, and the consequence imposed, rather than treating silence as a confession.
Denials, counter-complainants, and the closing instructions
Capture denials with the same precision as admissions. Capturing these verbatim is important. “That never happened” and “it wasn’t like that” are different sentences, and the difference will matter when the accused’s account evolves in litigation. Expect the counter-complaint. Accused employees frequently answer allegations with their own allegations against the complainant, the process, a manager, and/or the company. Take every counter-complaint seriously as a formal matter. Be sure to log it, assess it, investigate what warrants investigation, and document the disposition of what does not. Dismissing a counter-complaint out of hand gives the accused a retaliation narrative. Processing it properly defuses one. This often requires a separate investigation. Close the interview with a no retaliation reminder and a commitment that the accused will be informed of the outcome as appropriate. Then do what you said.
What employers can do to prepare to interview the accused?
- Script the Upjohn warning into every counsel-conducted interview template, with a notation that the witness acknowledged your delivery of same.
- Prepare an allegation summary for the accused’s interview that is specific enough for meaningful response.
- Add a counter-complaint protocol to your playbook.
- Train investigators to capture denials verbatim and to close every accused interview with the standard instruction set.
Next installment: when it is he said, she said it is the credibility determination every investigator dreads, and how to make one that reads as reasoned rather than rigged.
The Investigation Roadmap: A Twelve-Part Series for Employers
This is an installment of the Investigation Roadmap, a twelve-part Vorys at Work series on workplace investigations. It is published weekly and walks through the full life of a workplace investigation, from the moment a complaint lands to the day the file becomes an exhibit.
