Can you use an AI note taker on reference check calls? Consent, FCRA and what to keep
On this page
- Can you record or transcribe a reference check call?
- Why is a referee different from a candidate?
- What should you say to the referee?
- When does the FCRA apply to reference checks?
- How do you set up an AI note taker for reference calls?
- What should you keep in the ATS, and what should you discard?
- Should an agency send the transcript to its client?
- What if the referee refuses, or the reference seems fake?
- Questions people ask
Yes, you can use an AI note taker on a reference check call, provided the referee is told and agrees. Federal law allows recording when one party consents, but all-party consent states such as California require every party's agreement, so ask at the start of every call. If an outside screening company runs the references for you, the federal Fair Credit Reporting Act's rules on investigative consumer reports can apply, including a written notice to the candidate within three days. Keep a write-up in the referee's words; delete the audio.
This page covers the parts the existing guides leave out: recording a third party, the FCRA when references are outsourced, and retention. What to ask is in our reference call script and reference check template. Legal facts below are from the statutes and the FTC, checked in October 2026. This is general information, not legal advice.
Can you record or transcribe a reference check call?
The legal question is the same as for any phone call. The federal Wiretap Act makes it lawful for a party to a call to record it, or for anyone to record it where "one of the parties to the communication has given prior consent" (18 U.S.C. 2511(2)(d)). Several states go further. California, for example, prohibits recording a confidential communication without the consent of all parties (California Penal Code 632). When you and the referee are in different states, treat the stricter rule as the one that applies; our guides to two-party consent states and recording calls across state lines list them.
An AI note taker that transcribes without saving audio is still capturing the conversation. Do not rely on the difference between "recording" and "transcribing" to skip the question.
Why is a referee different from a candidate?
- They have no stake in the process. A candidate wants the job and has read your privacy notice. A referee is doing you a favor and owes you nothing, including candor on the record.
- They talk about someone else. A reference call creates personal data about two people: the referee's opinions and the candidate they describe.
- They may be more cautious when recorded. Many referees already limit what they say about former employees. A recording can make that worse, which is why you should offer a no-recording option and mean it.
- The candidate's authorization does not cover them. A candidate can authorize you to contact a referee; only the referee can agree to their own words being captured.
What should you say to the referee?
Use this at the start of the call, after confirming who they are and how they know the candidate:
"Before we start, I'd like to use a note-taking tool that transcribes our call, so I can listen rather than type. The notes are used only for [Candidate]'s application with [Company/Client], and [who will see them, e.g. the hiring manager]. [The audio isn't kept.] Is that all right with you? If not, no problem. I'll take notes by hand."
- If they agree, note the time and their words ("yes, that's fine") in your write-up.
- If they hesitate, switch the tool off before going on, and say that you have. Do not argue the point.
- If the call drops and you call back, ask again.
- If they say something and then ask you to keep it out of the notes, do so, and do not use it to decide.
The referee's agreement covers the use you described. If you are an agency, telling them the client will see a summary is part of the notice, not a courtesy.
When does the FCRA apply to reference checks?
It depends on who makes the calls. The FCRA regulates consumer reports prepared by consumer reporting agencies. When your own recruiters call references directly, that is generally not a consumer report. When you hire an outside company that is in the business of compiling this information, and it interviews references and reports to you, the report can be an investigative consumer report: one in which information on a person's "character, general reputation, personal characteristics, or mode of living is obtained through personal interviews" with people who know them (15 U.S.C. 1681a(e)).
That classification brings extra duties for the employer that orders the report:
| Duty | What the law says | Source |
|---|---|---|
| Standard background check disclosure and authorization | A clear and conspicuous written disclosure, in a document that consists solely of the disclosure,, and the candidate's written authorization, before the report is obtained | 15 U.S.C. 1681b(b)(2) |
| Investigative report notice | A written disclosure that the report may be made, delivered "not later than three days after the date on which the report was first requested," with a statement of the right to request more information | 15 U.S.C. 1681d(a) |
| Nature and scope on request | If the candidate asks in writing, a complete and accurate disclosure of the nature and scope of the investigation, within five days | 15 U.S.C. 1681d(b) |
| Adverse action | Pre-adverse and adverse action notices if the report contributes to a decision not to hire | FTC guidance for employers |
The FTC's employer guide summarizes the investigative report rule as written notice that "you may request or have requested an investigative consumer report," and the candidate's "right to request additional disclosures and a summary of the scope and substance of the report." Whether the screening company records or uses an AI note taker on its calls is its own compliance question, but ask, because its transcript becomes part of a regulated report. For agencies that check references on behalf of clients, whether your service falls under these rules is a question for counsel. The wider process is in our FCRA background check guide, and state rules on what former employers may say are in employment reference laws.
How do you set up an AI note taker for reference calls?
- Pick a capture method that works on a phone call. Referees rarely join a video meeting. A meeting bot cannot join a phone call, so use a desktop app with the call running through your computer, a business phone system with transcription, or a phone with a built-in recorder. The options are compared in how to record a phone screen.
- Turn off audio storage if the tool allows it. You need the referee's words in writing, not their voice on file.
- Keep the call out of shared spaces. Check that the tool does not auto-share the summary with calendar attendees or a team channel.
- Prepare three questions that matter most for the role, so the transcript has something worth reading.
- Give the notice before the first question, using the script above.
- Check every quote before it leaves your desk. AI summaries smooth over hedges. "I'd rehire her for the right role" can come out as "would rehire," which is a different answer.
What should you keep in the ATS, and what should you discard?
| Item | Keep or discard | Why |
|---|---|---|
| Write-up in the referee's own words on job-related points | Keep on the candidate record | It is the evidence behind your decision |
| Referee's name, relationship to the candidate, date and consent note | Keep | Shows who said it and that they agreed to notes |
| Full transcript | Keep for your hiring-record retention period, then delete | The verbatim record if a summary is challenged |
| Audio recording | Discard, or do not create it | More sensitive than text and rarely needed |
| Anything about health, disability, family, age, religion or other protected characteristics | Do not record; remove it if captured | Not job-related; see what not to write in interview notes |
| The AI tool's own summary | Replace with your checked write-up | An AI paraphrase is not the referee's statement |
On timing, the EEOC's recordkeeping rule requires covered employers to keep "records having to do with hiring" for one year from the date the record was made or the personnel action, whichever is later, and longer if a charge is filed (29 CFR 1602.14). Treat reference write-ups and any transcript you keep as hiring records. Schedules for each record type are in how long to keep interview notes.
Should an agency send the transcript to its client?
No. Send a short write-up in the referee's words, as the reference check template shows, and keep the transcript on your own system. The referee agreed to notes for this application, not to their full conversation being forwarded, and a transcript can carry asides and personal details the client should not hold. If the client wants to verify a point, offer to call the referee back with a specific question.
What if the referee refuses, or the reference seems fake?
A refusal to be transcribed is not a red flag; take notes by hand and move on. A referee who cannot describe the candidate's work, avoids verifying their own employer, or answers from a script is a different matter. Our guide to spotting fake references covers the checks, and an AI transcript can help there: it lets you compare two referees' wording side by side after the calls.
Questions people ask
Can I record a reference check call?
Yes, if the referee knows and agrees. Federal law allows recording when one party to the call consents, but states such as California require the consent of every party to a confidential conversation, and the stricter rule is the safe default when you and the referee are in different states. Ask at the start of the call and offer to take notes by hand instead. This is not legal advice.
Does the FCRA apply to reference checks?
Not usually when your own company makes the calls. When an outside company you pay interviews references and reports back, the report can be an investigative consumer report under the FCRA, which requires a written disclosure to the candidate within three days of requesting it, plus the usual disclosure and authorization for background reports.
Should I keep the recording or transcript of a reference call?
Keep a write-up in the referee's own words on the candidate record for at least as long as your other hiring records, which for covered employers is at least one year under 29 CFR 1602.14. Delete the audio, and do not keep anything the referee volunteered about health, family or other protected characteristics.
Do I have to tell the referee an AI tool is taking notes?
Tell them the call is being transcribed, by what kind of tool, and who will see the notes. A referee speaks about someone else, never agreed to your vendor's terms, and may ask you to stop, so the safest practice is to say it plainly and pause the tool if they object.