Innovative programs that include participation have been found illegal in certain situations. Overcoming the obstacle of retaining the element of participation and remaining in compliance with the law is a challenge facing many businesses. Tests have been developed to examine Sections 2(5) and 8(a)(2) of the NLRA. When Scanlon plans are examined, they frequently fail. This implies that they would be seen as labor organizations, unlawfully controlled by the employer. Solutions to this finding include changing the programs or changing the legislation. Neither seems adequate, since changing the plans negates their benefits, and calls for legislative change have gone unanswered.