From Innovation to Protection: AI’s Influence on Confidentiality and Intellectual Property in the Workplace

While AI has been employed for a number of years in connection with various Human Resources needs, it has now become ubiquitous across all aspects of the workplace. It is used to help screen employment applications, and to collect data about past, current, or prospective employees. It can be used to assist with daily tasks such as creating presentations or drafting copy for a project. It can even be employed to assist with prevention of a cyberattack. However, while AI can certainly be a value-add, it comes with a variety of legal concerns including concerns about the confidentiality of data and communications, and questions about ownership rights.

As far as confidentiality of data is concerned, one area to be aware of is the auto-generated AI note-taking, transcript-creation, or recording options available through various meeting platforms (Microsoft Teams, Zoom). Often times, when a company is meeting with their employment counsel, it is to discuss something of a confidential nature, whether to do with one employee specifically, or general internal policies. It is unadvisable to create or maintain recordings of these confidential meetings. Separately, but relatedly, if your team is meeting with any other third party, whether for ordinary business meetings or more sensitive issues, it is advisable to inquire whether the meeting is being recorded or transcribed. While Vermont is still a one-party consent state for purposes of actually creating a recording, and therefore nothing explicitly prohibits a meeting attendee from making a recording, it is more likely than not that those involved in business calls would not want such AI tools to be used in this context.

Furthermore, the crux of your relationship with your legal counsel is the attorney-client privilege created upon engagement. This privilege offers strong protections for you and your company. Permitting an AI tool or program to essentially intrude on your meetings and conversations, using its programming to record and or transcribe the goings-on could potentially jeopardize attorney-client privilege. As this is a newly developing area of the legal landscape, there is no clear guidance on this subject yet. As in most new and emerging areas of the law, caution is a safe bet to protect against unwanted exposure or risk.

In addition to confidentiality concerns, the use of AI in the workplace can lead to questions about ownership of intellectual property rights and work product. While a project contracted by a company or made by a current employee is usually considered a work for hire, or work product (which usually starts as and continues to be company-owned in perpetuity), the ownership of projects made with AI assistance is less clear-cut. Using AI means using an algorithm developed by a third party, who does not work for your company, has no allegiances, and has not signed any sort of employment agreement giving up their ownership interest in any intellectual property they have created. This area of the law is evolving daily, and will continue to do so as these types of questions of ownership rights arise more frequently.

For more information on understanding the implications of and dealing with AI in the workplace and as relates to intellectual property, please contact Hannah Lebel or another member of the Primmer Labor & Employment Law team.