Hunton Employment & Labor Perspectives

Artificial intelligence (“AI”) has become an ever-increasing presence in the workplace.  AI can help employees focus on more meaningful work by eliminating certain rote tasks including note taking or transcribing meetings.  But, as with any workplace tool, some notes of caution are necessary.

In particular, employers should ensure that AI-generated meeting notes and transcripts are reviewed for accuracy, that parties consent to having meetings transcribed, and that everyone understands that transcribed conversations could be used as evidence if the company is later sued.

Employers may also want to consider not using AI to transcribe every meeting, particularly sensitive discussions regarding personnel issues or potential litigation.

Accuracy Concerns

As with any technology, there is a risk that AI-generated transcripts and meeting notes may contain errors.  Communications can be misinterpreted, nuances missed, and key points taken out of context.  This is particularly true when employees are discussing complicated issues, using insider terminology, referring to visual information that is not read into the transcription technology, or when people are talking over each other during meetings.

Employers who choose to use AI transcription should consider having a meeting attendee skim or review any AI-generated notes or transcripts to correct any inaccuracies contemporaneously. At the very least, AI notes and transcripts should be cross-referenced with recordings and/or any notes taken by attendees.  

Employee Consent is Crucial

Recording and obtaining an AI-generated transcript of a meeting without first obtaining the consent of all participants could also run afoul of wiretap laws. The legal framework varies depending on the jurisdiction, but some states require everyone who participates in a conversation to consent before it can be recorded. These states include California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Nevada, New Hampshire and Pennsylvania.

Complications can arise when, for example, a meeting is located in a state that does not require all participants to consent to a recording, but a few employees dial in remotely to the meeting from a state where all parties are required to consent to a recording. Trying to identify which laws apply in any given circumstance is probably not feasible, as a practical matter. 

As a best practice, anyone who wants to use an AI transcription tool should obtain consent from all meeting attendees before turning it on.  Many commercial conferencing platforms already offer disclaimers for any meeting that is being recorded. Obtaining consent is crucial when it comes to traditional recording methods and any AI-generated transcripts.

 Evidence Gathering Tool

Employers should also be aware that AI-generated notes and transcripts – much like emails and others company documents – can become discoverable evidence. That means that employers have an obligation to ensure that these AI-generated notes, transcripts and any associated data are both accessible and preserved in the event of actual or threatened litigation.

That also means that meeting participants should be aware of and consider that anything said during these meetings could become evidence in a future lawsuit against the company. And additional caution is warranted whenever legal counsel are present to ensure that the attorney-client privilege is maintained wherever applicable. 

Conclusion

These are just a few of the relevant concerns companies may want to weigh when considering an AI transcription tool.  While some of these concerns might be mitigated by using a tool that provides a high-level summary of the topics discussed during a meeting, rather than a word-for-word transcription of the meeting, companies should be mindful to balance the risks and benefits of AI transcription technology when using it in the workplace.