45 Years After Upjohn: What the Warning Means for Chicago Employees Today
What Every Chicago Employee Should Know About the Upjohn Warning in 2026
Key Takeaways: The Upjohn warning, rooted in the 1981 Supreme Court decision, reminds employees that corporate counsel represents the company, not them, and that their statements can be shared with government investigators. Illinois law and ethics rules reinforce that employees have no personal attorney-client privilege in corporate internal investigations. When federal or state grand jury proceedings run parallel to an internal investigation, employee risks multiply significantly. Illinois provides whistleblower protections and prohibits retaliation for grand jury service, but strict filing deadlines apply. Employees who receive an Upjohn warning should retain their own attorney before answering questions.
In 1981, the U.S. Supreme Court decided Upjohn v. United States, establishing that communications between corporate counsel and company employees could fall under the corporation’s attorney-client privilege. Forty-five years later, that ruling still shapes corporate internal investigations. For Chicago employees, the takeaway remains: the company’s lawyer represents the company, not you. An Upjohn warning is when corporate counsel tells you exactly that. Understanding what the warning means and what it does not protect is essential to making informed decisions about your legal exposure.
If you are a Chicago employee or executive facing questions during a corporate internal investigation, Glozman Law can help you understand your rights and evaluate your options. Call (312) 726-9015 or reach out through our contact page to discuss your situation.
The Upjohn Warning Corporate Internal Investigation: What Actually Happens
When a corporation suspects internal wrongdoing, it typically retains outside counsel or directs in-house attorneys to investigate. These lawyers interview employees with relevant information. Before the interview begins, the attorney is expected to deliver an Upjohn warning, sometimes called a corporate Miranda warning. The warning generally covers these points:
- The attorney represents the corporation, not the individual employee.
- The attorney-client privilege belongs to the corporation, not the employee.
- The corporation may waive that privilege and disclose the employee’s statements to third parties, including government investigators.
- The employee may wish to obtain their own counsel.
In practice, delivery of this warning varies. Some attorneys read from a script. Others paraphrase it quickly. Many employees do not fully absorb what they are hearing, particularly when anxious or believing cooperation will protect their job. The warning is not a formality. It defines the legal relationship in the room, and misunderstanding it can have serious consequences.
Pro Tip: If you receive an Upjohn warning, ask the attorney to slow down and confirm each element in writing. You are entitled to understand who the lawyer represents before answering questions.
Why Illinois Law Reinforces the Upjohn Framework
Illinois statutory law reinforces that corporate attorneys owe their duty to the entity, not individual employees. Under the Illinois Corporation Practice of Law Prohibition Act (705 ILCS 220), attorneys receiving clerical or informational services from a corporation must "maintain full professional and direct responsibility to his clients." Separately, under Illinois Rule of Professional Conduct 1.13(a), a lawyer employed or retained by an organization represents the organization, not its individual officers, directors, or employees, acting through its duly authorized constituents. Rule 1.13 makes clear that a lawyer representing an organization represents the entity itself, not its officers, directors, or employees.
For Chicago employees, the implication is direct. Statements you make to corporate counsel during an internal investigation are not shielded by any personal attorney-client privilege. The corporation holds the privilege and can waive it at any time, including by turning your statements over to federal prosecutors. In federal white-collar investigations, cooperation credit often depends on a company’s willingness to share internal investigation results with the government.
Pro Tip: Do not assume that because an attorney is friendly or sympathetic during an interview, they are protecting your interests. Their obligation runs to the company under both Illinois law and professional ethics rules.
How an Upjohn Warning Intersects with Federal Grand Jury Proceedings in Chicago
Corporate internal investigations frequently run parallel to federal criminal investigations. When a federal grand jury is investigating potential corporate fraud, healthcare violations, or financial crimes, the company’s internal investigation and the government’s probe often cover the same ground. Employees may be interviewed by corporate counsel one week and subpoenaed by a federal grand jury the next. Understanding the Upjohn warning becomes critical because anything you told the company’s lawyers may eventually reach the prosecution.
Illinois also has its own grand jury framework with procedural protections. Under the Illinois Statewide Grand Jury Act (725 ILCS 215/10), the Attorney General must consult with the relevant local State’s Attorney before granting use immunity to any witness. For transactional immunity, the State’s Attorney must affirmatively consent. Multiple layers of prosecutorial review exist before immunity is extended. You can review the Statewide Grand Jury Act for the full statutory framework.
Pro Tip: If you learn that a federal or state grand jury investigation is running alongside your employer’s internal investigation, retain your own attorney immediately. The overlap between these proceedings creates risks that require individualized legal analysis.
Employee Interview Rights Under Illinois Law
Illinois law provides an instructive parallel for what employees should expect when being interviewed during any investigation. The Pretrial Services Act (725 ILCS 185/11) requires that no person may be interviewed unless first advised of the identity and purpose of the interviewer, the scope of the interview, the right to secure legal advice, and the right to refuse cooperation. While this statute applies in the criminal pretrial context, it reflects the same principle underlying the Upjohn warning.
Chicago employees interviewed during a corporate internal investigation should hold corporate counsel to the same standard. Ask who the attorney represents. Ask what will happen with your statements. Ask whether you may have your own lawyer present. For more on when employees need an Upjohn warning, the distinction between situations where the warning is required and where it is often skipped is worth reviewing carefully.
Job Protection During Grand Jury Service
Illinois law protects employees from retaliation related to grand jury service. Under the Jury Act (705 ILCS 310/10.1(b)), no employer may discharge, threaten, intimidate, or coerce any employee because of jury service in any Illinois court. Violations may result in contempt charges, liability for lost wages and benefits, and injunctive relief including reinstatement. Your employer cannot lawfully fire you or pressure you simply for participating in grand jury proceedings.
Whistleblower Protections and Retaliation: Additional Layers for Illinois Employees
Illinois employees who report suspected wrongdoing during or after a corporate investigation have statutory protections against retaliation. Under the Illinois Whistleblower Act (740 ILCS 174), employers are prohibited from retaliating against employees who disclose or threaten to disclose information they reasonably believe reveals a violation of state or federal law. As amended effective January 1, 2025, the Act now protects internal disclosures made to a supervisor or principal officer, not only reports made to external government bodies. Retaliatory action includes firing, demotion, wage reduction, denial of promotion, discipline, threats, or any other action that would dissuade a reasonable employee from coming forward. Notably, the Act does not apply to disclosures that would constitute a violation of attorney-client privilege.
The Illinois Attorney General’s Workplace Rights Bureau serves as an enforcement mechanism for these protections. The Bureau investigates and litigates cases involving serious wage law violations and significant employment practices. Employees who believe their employer has retaliated against them can contact the Workplace Rights Hotline at 1-844-740-5076.
Pro Tip: If your employer pressures you not to cooperate with a government investigation or retaliates after you do, document every interaction. Written records are often the strongest evidence in retaliation claims.
Filing Deadlines: Why Timing Matters for Chicago Employees
If you experience discrimination or retaliation connected to a corporate investigation, strict filing deadlines apply. For federal discrimination charges filed with the EEOC, the deadline is generally 300 calendar days from the adverse action when the charge is also covered by a state anti-discrimination law, as is typically the case in Illinois. For claims filed under the Illinois Human Rights Act with the Illinois Department of Human Rights, a separate deadline applies. Only timely-filed claims will be investigated. In harassment cases, the filing clock runs from the last incident, and the EEOC will consider earlier incidents in its investigation even if they fell outside the window.
The key takeaway for Chicago employees is that delay can forfeit claims. If you are navigating a corporate internal investigation and believe your employer is taking adverse action against you, consult with your own attorney about filing deadlines before they expire. Missing a deadline by even one day can be fatal to your claim.
Pro Tip: Mark the date of every adverse employment action on a calendar and share it with your attorney. In discrimination and retaliation cases, timing is critical.
Frequently Asked Questions
1. What is an Upjohn warning, and does it protect me as an employee?
An Upjohn warning is a disclosure by corporate counsel that they represent the company, not the individual employee. It does not protect you. It protects the company’s attorney-client privilege. The corporation can waive that privilege and share your statements with the government.
2. Can I refuse to participate in a corporate internal investigation interview?
Employees can often decline to be interviewed, though doing so may have employment consequences depending on company policy. Retaining your own counsel before making that decision is advisable.
3. What happens if a corporate investigation and a federal grand jury investigation overlap?
Your statements to corporate counsel may be shared with federal prosecutors if the company cooperates with the government. Anything you say without your own attorney advising you could become evidence. This is why federal grand jury defense counsel should be involved early.
4. Does Illinois law require employers to give employees an Upjohn warning?
No single Illinois statute mandates an Upjohn warning by name. However, the Illinois Rules of Professional Conduct, particularly Rule 1.13, require lawyers representing organizations to clarify the relationship when the organization’s interests may diverge from an employee’s interests.
5. Can my employer fire me for cooperating with a grand jury?
Under the Illinois Jury Act (705 ILCS 310/10.1(b)), employers are prohibited from discharging, threatening, or coercing employees because of jury service, including grand jury service. Violations can result in contempt charges, damages, and reinstatement orders.
Protecting Your Position When the Stakes Are Real
The Upjohn warning exists because corporate investigations create a legal dynamic where company interests and employee interests can sharply diverge. Forty-five years after the Supreme Court’s decision, the warning remains one of the most misunderstood moments in corporate legal proceedings. For Chicago employees, understanding that the company’s attorney is not your attorney, that your statements can be disclosed, and that parallel grand jury proceedings add complexity is essential to protecting yourself.
If you are facing questions in a corporate internal investigation or have received a grand jury subpoena, Glozman Law provides straightforward counsel tailored to your specific situation. Call (312) 726-9015 or contact us online to discuss your next steps.