The railroad industry’s practice of “flip-flopping” train conductors’ work schedules has caused several deadly train derailments in recent years. This practice, whereby a railroad employer drastically changes a conductor’s work schedule, sometimes more than once per week, deprives him of sleep and greatly increases the risk of a train wreck. California law derails this practice by limiting the number of consecutive hours that a conductor or other “trainman” can work. Similarly, California law requires a railroad corporation to authorize and permit a trainman to take a 10-minute rest break for every four hours of work or major fraction thereof.
What Are the Maximum Daily Hours of Work for a Trainman?
California law prohibits a railroad corporation from requiring or knowingly permitting any trainman, including a conductor, motorman, engineer, fireman, brakeman, train dispatcher, or telegraph operator, to be on duty for more than 12 consecutive hours.1 The railroad corporation must relieve a trainman who has been continuously on duty for 12 hours and not permit him to go back on duty until he has been off duty for at least 10 consecutive hours.2 Similarly, the railroad corporation may not require or permit a trainman who has been on duty for 12 total hours in any 24-hour period to continue or again go on duty unless he has been off duty for at least eight consecutive hours.3
But the rules are even stricter when a trainman’s job is to dispatch, report, transmit, receive, or deliver “orders pertaining to or affecting train movements.” He may not be on duty for: (1) more than nine hours in any 24-hour period in towers, offices, places, and stations continuously operating night and day; or (2) more than 13 hours in towers, offices, places, and stations operating only during the daytime.4 In case of emergency, however, the railroad corporation may require or permit him to be on duty for four additional hours in a 24-hour period.5 The railroad corporation may not, however, require or permit him to be on duty for four additional hours on more than three days in any week.6
None of those rules apply at all if a trainman must work more than the maximum hours because of: (1) a casualty, unavoidable accident, or act of God; or (2) a delay that the railroad corporation, or its officer or agent in charge of a trainman at the time the trainman left a terminal, didn’t foresee or couldn’t have foreseen.7 But none of the rules apply in any case to the crews of wrecking or relief trains.8 In fact, California law doesn’t limit how many hours a railroad can require or permit a wrecking crew to work consecutively or in a 24-hour period. That said, an employer may not terminate or otherwise discipline a nonexempt employee for refusing to work more than 72 hours in any workweek, except in an “emergency.”9
If any railroad corporation overworks a trainman, it will careen towards a major lawsuit. The violation of “any provision” of the trainman statutes subjects a railroad corporation to a civil penalty of not less than $500 nor more than $5,000 for each offense.10 The trainman can collect those civil penalties for the State of California by suing the railroad corporation under the Labor Code Private Attorneys General Act (PAGA). In return for conducting the PAGA gravy train for the State of California, he can keep 25% of those civil penalties as a bounty.11 What’s more, a prevailing trainman, but not a prevailing railroad corporation, can obtain a mandatory award of attorney’s fees.12
Can a Trainman Also Take Rest and Bathroom Breaks?
Just because a trainman might have to work 12 straight hours doesn’t mean he can’t rest. California law requires an employer to “authorize and permit” an employee to take a 10-minute rest period for every four hours of work or major fraction thereof.13 (He doesn’t have the right to a rest break if he works less than three-and-a-half hours.) The rest periods must occur as close as is practicable to the middle of the work period.14 For example, an employee who works from 8:00 a.m. to 5:00 p.m. will have the right to two 10-minute rest periods: one at 10:00 a.m. and another at 3:00 p.m. If an employer won’t let an employee take a rest break, he’ll be liable for an extra hour of pay at his regular rate.15
No law says that an employee can or can’t go on a bathroom break. But holding it until the next rest break just isn’t an option for an overworked trainman who has had several cups of coffee just to stay awake. He just better pray that he doesn’t have an “accident” when he’s passing through Santa Monica. The Santa Monica Municipal Code prohibits any person from: (1) unloading, discharging, placing, or depositing any human excrement or “other offensive or nauseous substance” on or along any railroad line; (2) depositing any “decaying or putrid matter or substance of any kind” in the Pacific Ocean; or (3) defecating or urinating in public or on any street or sidewalk or other public place.16