In July 2018, the National Labor Court of Appeals of the City of Buenos Aires overruled the lower court’s ruling and decided that the employer may not fairly dismiss an employee based on evidence obtained from the employee’s corporate email, if the use of the corporate email has not been specifically regulated and formally communicated to the employees.
The National Labor Court of Appeals ruled that even if the employee admitted that she has sent emails to competitors containing a list of her employer’s clients, there was not a specific internal regulation regarding the use of the corporate email. That lack of internal regulation limits the employer’s power to review employees’ corporate emails based on the fact that it would affect their privacy rights. This is consistent with other cases, such as “Pereyra, Leandro Ramiro c/Servicios de Almacén Fiscal Zona Franca y Mandatos s/despido”, in which the National Labor Court of Appeals ruled that: if a company does not have a clear policy regarding the use of internet and corporate emails and does not formally communicate to its employees that their use is exclusively limited to labor purposes, the screening of corporate employees’ emails by the employer should not be admitted due to privacy rights.
Based on the above-referred rulings, it is advisable that employers introduce written policies regarding the use of internet and corporate emails and give formal notice of those policies to all employees. Besides, those policies should expressly set forth that the employer is entitled to monitor employees’ corporate emails, for the employer to be in a position to successfully argue that the employees have no privacy expectations in that respect and, therefore, to be able to produce evidence based on an employee’s corporate emails.