Artificial intelligence, or AI, has quickly found a home in the workplace—and your newest “employee” may already have a seat at the conference table. An AI Note-Taker can transcribe conversations, help draft emails, summarize discussions, outline documents, generate action items, and spare everyone from taking notes. For many employers, this eager new assistant has become a routine participant in the workday and in virtual meetings.
But before you invite your AI Note-Taker to every meeting on the calendar, remember that this “employee” may need much closer supervision than you think. When the agenda includes hiring, discipline, performance concerns, workplace investigations, reductions in force, or other personnel decisions, the AI Note-Taker can turn an intended private conversation into discoverable evidence that supports an employee’s legal claim. And if you bring this digital assistant into a meeting with your attorney, it may put the “privilege” in attorney-client privilege at risk.
The Employee Left, But the AI Note-Taker Did Not
According to allegations in a recently filed New Jersey lawsuit, an employer’s AI Note-Taker stayed on the job after the employee left the meeting—and then sent her what it heard. Lindsay Waninger began working as an Environmental Scientist for Marathon Engineering & Environmental Services (“Marathon”) on November 11, 2024. Less than three months later, Marathon terminated her employment during a virtual meeting because it “wasn’t working out.” An administrator attending the meeting enabled Fireflies.ai to record and take notes. After Waninger left, Marathon’s representatives remained on the call and discussed what their “ideal person” for the vacant position would look like.
Waninger alleges that one Marathon representative said the replacement would be “[h]opefully a relatively strapping young man.” The AI Note-Taker captured the comment and placed it in the meeting transcript. Then, after Marathon’s representatives ended the call, the AI Note-Taker emailed Waninger a link—not only to the termination discussion, but also to the conversation that occurred after she left.
Waninger filed a lawsuit claiming she was unlawfully terminated because of gender discrimination. At this early stage, her allegations are just that—allegations—and no court or jury has determined whether her claims are true. Even so, the lawsuit illustrates a significant risk for employers: your AI Note-Taker could become your former employee’s star witness in a later lawsuit. This digital employee may capture, preserve, and distribute conversations that no one intended the former employee to receive. In the past, a stray comment after a personnel meeting might have remained an unfortunate private conversation that the former employee could only speculate about. Today, an unsupervised AI Note-Taker can create and circulate a searchable record within seconds.
The “Employee” in the Corner Could Cost You Privilege
Waninger’s lawsuit highlights the risk of letting an AI Note-Taker attend employment meetings, but the concern does not stop there. Your newly “hired” assistant may also try to join conversations with your attorney—and that is one meeting invitation you should think twice about sending. Giving the AI Note-Taker access to privileged discussions may create an argument that those conversations are no longer confidential and must be shared with a plaintiff.
Attorney-client privilege generally protects confidential communications between attorneys and clients when the communications are made for the purpose of obtaining or providing legal advice. The privilege belongs to you, as the client, but you may put it at risk by inviting your AI Note-Taker into the room. As a general rule, the presence of a third party can waive the privilege unless:
- The third party is essential to the attorney-client relationship (i.e., an interpreter, necessary expert); or
- The client consents to the third-party’s involvement and the communication remains confidential
I hate to break it to you, but your AI Note-Taker is helpful—not essential. This assistant may record and transcribe a meeting so that you can focus on listening and participating instead of taking notes. That convenience, however, does not make the AI Note-Taker essential to the attorney-client relationship.
Even if you consent to your AI Note-Taker attending a meeting with your attorney, you may not be able to guarantee that the conversation will remain confidential. Like an employee who forwards sensitive information outside the company, many AI Note-Takers send data to third-party vendors that may process conversations on external servers, store transcripts in cloud environments, retain recordings and summaries, or share information with other software systems. Those practices are often addressed in vendor terms of service—that long document with all the fine print that most people quickly scroll through before clicking “I accept.” Some AI systems may also use submitted data to improve their models, depending on the product, its settings, and the vendor’s terms. Ongoing lawsuits have alleged that certain AI vendors recorded conversations without every participant’s consent or used recordings for training without adequately disclosing that practice.
While the law surrounding AI is rapidly developing to keep up with the rapid development in AI capabilities, employers need to recognize that permitting their AI Note-Taker to attend a privileged meeting can open the door to a plaintiff making the argument that the meeting is no longer confidential and they should be able to receive a copy of the meeting’s transcript.
Your AI Note-Taker Might Need a PIP
One more issue belongs in your AI Note-Taker’s performance review: accuracy. Employers often assume that AI-generated notes provide a verbatim record of a meeting. In reality, many tools create summaries rather than transcripts, and your digital employee may misunderstand a speaker, omit important context, misidentify a participant, or confidently produce an inaccurate account of what happened.
Take a minute to think about when you have used Siri, Bixby, or Alexa to do something for you or to write a message to someone. How many times have they misheard you and started a call to the wrong contact? Or played the wrong song? Or sent a message to someone that you then must clarify was a talk-to-text message because there are spelling errors and wrong words? AI Note-Takers are not any different.
If your organization uses an AI Note-Taker, someone needs to supervise its work. Require a knowledgeable employee to review every transcript or summary for accuracy and context before it is shared with meeting participants or anyone else who needs a record of the discussion. Your AI Note-Taker may be fast, but it should not be the final decision-maker about what the meeting record says.
The Bottom Line – Practical Steps Employers Should Take NOW
I am not telling you to fire every AI tool. AI can increase productivity, streamline workflows, and reduce the administrative burden of documenting workplace decisions. Employers have also heard attorneys repeat the same advice: document, document, document personnel decisions so there is a clear record of what was decided and why. Your AI Note-Taker can make that job easier—but convenience does not eliminate the need for judgment and supervision.
The point is not to ban your AI Note-Taker; it is to set clear workplace rules for this new employee. Employers that allow AI tools in the workplace should take the following steps:
- Establish an AI Policy (detailing approved AI tools, permissible uses AI, prohibited uses of AI, responsibilities for reviewing AI-generated work, information that cannot be entered into AI tools, etc.)
- Train Managers & Supervisors on AI Use (when can’t they use AI in conjunction with personnel decisions and documentation and how to monitor employee’s use of AI)
- Keep AI Note-Takers Out of Sensitive Meetings
- Check In with Legal Counsel (if employers have any questions about their use of AI tools and potential implications down the road)
If you or your organization have any questions about implementing an AI policy in the workplace or any other legal issues regarding employment, consider contacting experienced employment counsel.
