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🗞️ When Silence Isn't Coercion: NLRB Judge Clears University of Dayton's Severance NDA

An NLRB administrative law judge dismissed a complaint against the University of Dayton, finding its severance nondisclosure clause did not unlawfully restrict employees' labor rights under the landmark McLaren Macomb standard.

onthelaborfront

onthelaborfront

— 4 min read
🗞️ When Silence Isn't Coercion: NLRB Judge Clears University of Dayton's Severance NDA

When the University of Dayton handed pink slips to 45 professional staff members in March 2025, it also handed each of them a severance agreement. Buried in Section 7 of that document was a nondisclosure clause requiring employees to keep the university's "confidential business, medical, and personnel information" to themselves. For Lis Regula, a biology lecturer whose contract was among those not renewed, that language was a step too far.

Regula filed an unfair labor practice charge with the National Labor Relations Board, setting in motion a case that would test the boundaries of one of the most consequential labor rulings of recent years. The NLRB General Counsel issued a formal complaint alleging the nondisclosure provision violated Section 8(a)(1) of the National Labor Relations Act by carrying a "reasonable tendency to interfere with, restrain or coerce employees" in the exercise of their Section 7 rights, which broadly protect workers' ability to discuss wages, working conditions and other matters of collective concern.

The legal backdrop was McLaren Macomb, 372 NLRB No. 58, a 2023 decision in which the Board reversed two prior Board rulings from 2020 and reasserted that merely offering a severance agreement with overbroad confidentiality or non-disparagement provisions could itself constitute an unfair labor practice. The ruling sent shockwaves through corporate human resources departments, prompting employers across the country to tear up their standard separation agreement templates and start over.

On April 10, 2026, Administrative Law Judge Arthur J. Amchan dismissed the complaint, siding with the university on two distinct grounds. The judge concluded that McLaren Macomb's holding is properly understood as applying only where an employer has committed other unfair labor practices alongside the offending severance language, a circumstance not present in the Dayton case. Language in the 2023 opinion suggesting a broader prohibition, he wrote, amounted to non-binding dicta that he was not obligated to follow.

The judge also found the agreement itself to be facially benign. A reasonable employee reading the nondisclosure clause, he wrote, would most naturally understand it as covering other workers' personnel records and information shared in confidence, not as a prohibition on discussing wages or organizing. That reading was reinforced by what the agreement did not contain: unlike the agreement at the center of McLaren Macomb, the University of Dayton's contract carried no sweeping non-disparagement clause barring employees from making statements that could harm the institution's image. The university's agreement required only that the dollar amount of the severance payment remain private, a far narrower confidentiality obligation than the one the Board had previously struck down.

The ruling lands at a moment of genuine legal uncertainty over just how far McLaren Macomb reaches. In September 2024, the Sixth Circuit enforced the Board's order against McLaren Macomb hospital, but notably declined to address the Board's standard for evaluating severance agreement language, deciding the case instead on the hospital's separate failure-to-bargain and direct-dealing violations. The core question of whether overbroad confidentiality and non-disparagement provisions are independently unlawful under McLaren Macomb remains unsettled in the courts. Judge Amchan's decision suggests that employers who keep their confidentiality language targeted and avoid broad non-disparagement clauses may have more room to maneuver than the 2023 ruling initially appeared to leave them.

The University of Dayton's workforce reductions were driven by enrollment declines and a goal of cutting roughly $25 million in operating costs over three years, according to the university. President Eric Spina said the cuts were unrelated to federal government actions and were aimed at keeping the institution out of a financial deficit. The decision is subject to exceptions before the full NLRB under Board Rules Section 102.46.

Key Points

  • The University of Dayton cut 65 positions in March 2025, including 45 faculty contracts not renewed and 20 staff positions eliminated, as part of a financial restructuring tied to declining enrollment.
  • Biology lecturer Lis Regula filed an NLRB unfair labor practice charge after the university presented all affected employees with a severance agreement containing a nondisclosure clause.
  • The NLRB General Counsel argued the clause ran afoul of McLaren Macomb (2023), under which even offering a severance agreement with overbroad confidentiality or non-disparagement provisions constitutes an unfair labor practice.
  • ALJ Arthur J. Amchan dismissed the complaint, ruling that McLaren Macomb applies only where the employer also committed other unfair labor practices, none of which were alleged here.
  • The judge found the agreement non-coercive on its face: a reasonable employee would understand the confidentiality obligation to cover other workers' personnel information, not to restrict protected concerted activity.
  • The agreement lacked the broad non-disparagement clause central to McLaren Macomb and required only that the severance payment amount, not the agreement as a whole, remain confidential.
  • The decision may be appealed to the full Board and contributes to an evolving body of post-McLaren Macomb precedent on the limits of permissible nondisclosure language in severance agreements.

Primary Source Author: Arthur J. Amchan, Administrative Law Judge, NLRB Division of Judges

Primary Source: University of Dayton and Lis Regula, JD-20-26, Case No. 09-CA-362228 (April 10, 2026)

Primary Source Link: (Document provided and not yet publicly indexed)

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