Between COBRA, discrimination testing and determining Patient Protection and Affordable Care Act compliance, employers really have to know who to count when counting employees.

Take, for example, the case of Warnecke v. Nitrocision LLC, where a district court held that an employer had more than 20 employees and was subject to COBRA because even though the direct employer had fewer than 20 employees, it was part of a control group and when all employees of the commonly controlled company were added up, the companies exceeded the 20-employee threshold. Remember that, for ERISA purposes, when two or more businesses are under common control, each can be considered a single employer of all employees in the group.

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