By Milan Chatterjee | Founding Attorney, Milan Legal |
A Defensible Workplace Investigation Is Judged on Process, Not on Who Was Right
A workplace investigation in Nevada is defensible when the employer can show, from contemporaneous records, that it responded promptly, investigated impartially, interviewed the people who mattered, reached a conclusion supported by what it found, and acted on it. Whether the investigator reached the objectively correct answer matters far less than whether the process would look reasonable to someone reading the file two years later.
That is the standard employers are actually measured against, and it is why so many investigations fail after the fact. The conclusion was often defensible. The record supporting it was not.
Nevada adds two traps that catch employers who follow generic national guidance. One is a recording statute that treats an in-person interview and a video call completely differently, with felony consequences for getting it wrong. The other is a heavily unionised hospitality workforce that triggers representation rights most employers outside Las Vegas rarely encounter.
Before the First Interview
Decide who investigates, and whether counsel directs it. An HR-run investigation and a counsel-directed investigation are different legal objects with different privilege consequences. Make that decision deliberately at the outset, not after a complaint becomes a charge.
Preserve immediately. Once a charge is filed, federal regulation requires the employer to preserve all personnel records relevant to it until final disposition (29 C.F.R. 1602.14). Do not wait for a charge. Suspend routine deletion of email, messaging, scheduling, timekeeping and access logs as soon as a complaint is received.
Scope the allegation in writing before you start. Write down what is alleged, who is alleged to have done it, when, and which policy or law is implicated. Investigations drift. A written scope is what lets you show later that you addressed the complaint that was actually made.
Separate the parties without penalising the complainant. If interim separation is needed, do not achieve it by moving the person who complained to a worse shift, a worse location or a worse role. NRS 613.340 makes it unlawful to discriminate against a person for opposing an unlawful practice or assisting an investigation, and the timeline does most of the work in a retaliation claim.
Check whether representation rights apply. In a unionised workplace, an employee who reasonably believes an investigatory interview may lead to discipline is entitled to request the presence of a union representative. Given the density of hospitality and gaming union representation in Las Vegas, this arises far more often here than in most markets. Confirm the status of every interviewee before scheduling.
The Privilege Decision You Make at the Start
An investigation conducted by HR in the ordinary course of business is generally not privileged. An investigation conducted at the direction of counsel for the purpose of providing legal advice may be, if it is structured that way from the beginning and the investigator gives appropriate warnings about who they represent.
There is a significant catch. If the employer later defends a harassment claim by arguing it exercised reasonable care to prevent and promptly correct the conduct, it will typically be treated as having put the adequacy of its investigation at issue and waived privilege over it. In practice, the investigation an employer most wants to rely on is the one it can least often keep confidential.
The realistic planning assumption is that the investigation file will be read by the complainant’s counsel. Write it accordingly.
Process Is What Gets Judged
Employers rarely lose these matters because the wrong conclusion was reached. They lose because there is a three-week gap between the complaint and the first interview, because the accused manager was interviewed first, because the notes are a two-line summary written from memory a month later, or because the person who investigated reported to the person being investigated. Each of those is a decision made in the first week, and each is visible in the file forever.
Nevada’s Split Recording Rule
This is the single most commonly misunderstood point for Nevada employers, and the consequences are criminal rather than civil.
In-person interviews follow one-party consent. Under NRS 200.650, a participant in a private in-person conversation may record it. An investigator sitting in the room with the interviewee may record without the interviewee’s agreement, though there are good reasons not to.
Telephone and video interviews require every participant’s consent. NRS 200.620 governs wire communications, and the Nevada Supreme Court in Lane v. Allstate Ins. Co., 114 Nev. 1176 (1998), read it as requiring all-party consent. That covers landline and mobile calls and, in practice, video conferencing platforms carrying audio.
The penalty is not a civil one. Recording a covered communication without the required consent is a category D felony under NRS 200.690, punishable by one to four years in prison and a fine of up to $5,000.
The practical consequence is specific. An investigator who records an in-person interview in Las Vegas has probably complied with the statute. The same investigator who moves that interview to a video call and presses record, without securing every participant’s consent on the record first, may have committed a felony. Post-2020 remote investigation practice made this materially more likely, not less.
Your No-Recording Policy May Also Be a Problem
Separately from the state statute, a private-sector employer’s blanket no-recording rule is evaluated under federal labour law. Under Stericycle, Inc., 372 NLRB No. 113 (2023), a work rule is presumptively unlawful if a reasonable employee could read it as chilling protected concerted activity, and the employer must justify it as narrowly tailored to a legitimate and substantial business interest. The same reasoning reaches blanket confidentiality instructions in investigations. A standing instruction never to discuss any investigation with anyone is harder to defend than a narrow instruction justified by the facts of a specific matter. Board precedent in this area has reversed direction more than once in recent years, so confirm the current standard when the question arises.
Conducting the Interviews
Sequence matters. Complainant first, then witnesses, then the respondent. Interviewing the accused first hands them the roadmap and looks, in hindsight, like a decision about credibility made before the evidence was gathered.
Ask open questions. “What happened next” produces evidence. “You didn’t feel threatened, did you” produces a document the other side will read aloud.
Do not promise an outcome. The interviewee can be told what the process is and when they will hear. They cannot be told what the conclusion will be, or that nothing will happen to them.
Take contemporaneous notes. Notes written during or immediately after an interview are evidence. A summary reconstructed weeks later is an argument. The difference is decisive when credibility is contested.
Interview everyone with relevant knowledge, including the inconvenient ones. A file that contains only witnesses supporting the outcome the employer reached is the most common single defect in these matters.
Writing the Report
State the allegation, the scope, who was interviewed and when, the documents reviewed, the factual findings, the credibility assessments and the basis for each, the conclusion, and the action taken. Separate what was found from what was concluded. Attach the underlying notes rather than summarising them out of existence. Then confirm the action described in the report actually happened, because an investigation that substantiates conduct and produces no corrective action is worse for the employer than no investigation at all.
What Determines Whether the Investigation Holds Up
Five things: how many days passed between the complaint and the first interview, whether the investigator was independent of the people involved, whether every relevant witness was interviewed, whether the notes are contemporaneous, and whether the corrective action matches the findings. Every one of them is decided in the first fortnight and none of them can be repaired later.
Milan Legal Perspective
Before founding Milan Legal, Milan Chatterjee served as Associate Compliance Counsel at Las Vegas Sands Corporation, a Fortune 500 hospitality and gaming company, where he advised senior leadership on internal investigations, governance and compliance across global operations. A UCLA School of Law graduate admitted in Nevada (Bar No. 15159) and California, he was appointed to the Nevada Supreme Court Access to Justice Commission and serves as Founding President of the South Asian Bar Association of Las Vegas.
Investigations conducted inside a large regulated organisation are built around a simple discipline: assume every step will be reviewed by someone who was not there and who is looking for the gap. That assumption changes how the scope is written, who is interviewed and in what order, and how the notes are kept. It is the difference between an investigation that resolves a workplace problem and one that becomes the central exhibit in the litigation that follows.
Milan Legal advises Nevada employers on workplace investigations, HR compliance and training, agency charge response, and ongoing outside general counsel support across Las Vegas, Clark County, Reno and the Lake Tahoe region.
Frequently Asked Questions
It depends on the format. An in-person interview may be recorded by a participant under NRS 200.650, which requires only one party’s consent. A telephone or video interview requires every participant’s consent under NRS 200.620 as interpreted in Lane v. Allstate.
Recording a covered wire communication without the required consent is a category D felony under NRS 200.690, carrying one to four years in prison and a fine of up to $5,000. This applies regardless of the employer’s intent or the reason for recording.
No statute sets a fixed number of days. The practical standard is promptness measured against the seriousness of the allegation, and the gap between the complaint date and the first interview is one of the first things opposing counsel will calculate.
A narrow confidentiality instruction justified by the facts of the specific matter is more defensible than a blanket rule. Under Stericycle, Inc., 372 NLRB No. 113 (2023), a work rule is presumptively unlawful if a reasonable employee could read it as chilling protected concerted activity. Board precedent here has shifted repeatedly, so confirm the current standard.
Usually not, if HR conducts it in the ordinary course of business. It may be if counsel directs it for the purpose of legal advice and it is structured that way from the start. Note that relying on the investigation to show reasonable care in defending a harassment claim will generally be treated as waiving privilege over it.
In a unionised workplace, an employee who reasonably believes an investigatory interview may lead to discipline may request a union representative. This arises frequently in Las Vegas hospitality and gaming. Non-union employees generally have no equivalent statutory right, though employer policy may grant one.
Only with care. NRS 613.340 prohibits discrimination against a person for opposing an unlawful practice or assisting an investigation, and a change that is objectively worse for the complainant shortly after a complaint invites a retaliation claim that can outlive the original allegation.
Conclusion
A workplace investigation is a record produced under time pressure that will be read years later by people looking for what is missing. The employer controls very little about the underlying facts and almost everything about the record: how fast it moved, who it chose to investigate, who it interviewed, what it wrote down at the time, and whether the action it took matched what it found.
In Nevada, add one item that has nothing to do with employment law. Before any remote interview is recorded, every participant must consent. Getting that wrong turns a personnel matter into a felony exposure, and it is the most avoidable error on this list.
Where to Start, Depending on Your Situation
If a complaint came in this week. Preservation, the scope memo and the privilege decision all need to happen before the first interview, and the retaliation review needs to happen before anyone is moved or rescheduled. This is the point at which advice is cheapest to act on.
