The University of Dayton, a private university in Ohio, faced an unfair labor practice charge after it declined to renew the annual contracts of 45 professional staff members and offered each employee a separation and release agreement. The dispute centered on the agreement’s confidentiality provision, which prohibited employees from disclosing “confidential business, medical, and personnel information” and required them to notify the University of any legal demand for such information.
The National Labor Relations Board’s General Counsel alleged that this provision violated Section 8(a)(1) of the National Labor Relations Act, which prohibits employers from interfering with employees’ rights to engage in protected concerted activity, such as discussing wages or workplace conditions. The challenge relied heavily on the Board’s decision in McLaren Macomb, a 2023 NLRB decision that held that severance agreements’ confidentiality and non- disparagement clauses may be unlawful if their terms would reasonably tend to interfere with employees’ protected rights.
The Administrative Law Judge rejected the claim and dismissed the complaint. The judge first addressed the scope of McLaren Macomb, explaining that its holding was tied to agreements that included broader, more restrictive provisions, such as sweeping non-disparagement clauses, and arose in the context of other alleged unfair labor practices. By contrast, the agreement at issue here was limited to confidentiality of specific categories of information and did not include the same expansive restrictions.
The judge concluded that the agreement would not reasonably be interpreted by employees as restricting their ability to engage in protected activity. The confidentiality clause focused on proprietary and sensitive information, such as personnel records or information obtained in confidence, and did not prohibit employees from discussing wages or working conditions. The judge emphasized that, absent other coercive circumstances, a reasonable employee would not understand the provision to limit their rights under the NLRA.
The Administrative Law Judge also addressed additional provisions in the agreement that were not directly challenged but were relevant to the analysis. In particular, the judge noted that the agreement’s non-disparagement clause was narrower than the one at issue in McLaren Macomb, as it was limited to prohibiting defamatory or maliciously false statements rather than broadly restricting any statements that could harm the employer’s image. The judge also observed that the agreement required confidentiality only as to the severance payment amount, rather than the entire agreement, which further distinguished it from the more restrictive provisions in McLaren Macomb. These distinctions reinforced the conclusion that the agreement, viewed as a whole, would not reasonably be interpreted to chill employees’ protected rights.
Because the agreement was not facially coercive and did not have a reasonable tendency to chill protected activity, the judge held that offering the agreement did not violate the NLRA and dismissed the complaint in its entirety.
University of Dayton (NLRB ALJ Apr. 10, 2026) JD–20–26.
Note: This decision provides helpful guidance for schools navigating severance agreements after McLaren Macomb. While overly broad confidentiality or non-disparagement provisions may still raise risk, more narrowly tailored clauses focused on legitimate confidential information may be permissible, particularly in the absence of other coercive conduct.